r'l 


DIVERSITY  M  CAL.rOK^iA 
1X)S  AMGBLBS 


^    KTtV 


EVOLUTION  OF  LAW: 

SELECT  READINGS  ON  THE   ORIGIN  AND  DE\nELOPMENT 
OF  tEGAL  INSTITUTIONS 

Volume  II 


PRIMITIVE  AND  ANCIENT  LEGAL 
INSTITUTIONS 


COMPILED   BY 

ALBERT   KOCOUREK 

PROFESSOR    OF    JURISPRUDENCE    IN    NORTHWESTERN    UNIVERSITY 
AXD 

JOHN   H.   WIGMORE 

PROFESSOR    OF    LAW    IN    NORTHWESTERN    UNIVERSITY 


BOSTON 

LITTLE,   BROWN,   AND   COMPANY 

1915 


Copyright,  1915, 
By  Little,  Beown,  and  Company. 


All  rights  reserved. 
Published,  June,  1915. 


Set  up  and  electrotyped  by  J.  S.  Gushing  Co.,  Norwood,  Mass. ,  U.S.A. 
Pressworkby  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.S.A. 


1G7 


PREFACE 

The  relation  of  the  present  volume  to  the  preceding  one  and 
the  volume  which  is  to  follow  is  shown  in  the  Preface  to  Vol- 
ume I.  The  first  two  volumes  should  be  used  together.  The 
selection  of  materials  is  such  that  they  are  intended  to  com- 
plement each  other.  For  the  student,  the  best  results  will  be 
gotten  by  attempting  first  to  master  the  raw  materials  of  the 
first  volume,  in  analogy  to  the  case-method ;  that  is  to  say,  by 
making  an  effort  to  reconstruct  for  himself,  from  topic  to  topic, 
the  state  of  development  of  the  legal  institutions  among  primi- 
tive and  ancient  peoples.  The  easier  and  less  profitable  way 
will  be  to  commence  with  the  second  volume,  referring  for 
illustrative  materials  to  the  first,  from  subject  to  subject. 
Nothing  further  is  here  tendered  as  suggestive  of  a  method 
of  attack.  Something  should  be  left  to  the  imagination  and 
the  industry  of  the  reader  or  teacher. 

In  view  of  the  statement  as  to  the  purpose  of  this  compila- 
tion already  made  in  the  Preface  to  Volume  I,  it  perhaps  need 
not  be  declared  that  these  volumes  are  not  intended  for  the 
specialist  in  historical  jurisprudence.  But  it  needs  again  to 
be  emphasized  that  a  study  of  the  laws,  customs,  and  usages 
of  inferior  peoples  does  not  exhaust  its  mission  simply  in 
tracing  out  the  connections  between  the  past  and  the  present. 
The  greatest  productive  value  of  an  inquiry  into  the  juridical 
life  of  remote  ages  and  of  arrested  developments  lies  in  pro- 
viding an  indispensable  standard  by  which  the  processes  of 
human  reason,  so  far  as  they  enter  the  sphere  of  legal  evolu- 
tion, are  guided  and  corrected.  Such  an  inquiry  should  result 
in  a  clearer  estimate  of  the  present,  and  should  provide  to  a 
degree  a  calculus  to  measure  the  quality  of  the  irresistible 
pressure  of  the  future  by  which  all  juridical  institutions  are 
constantly  and  progressively  modified. 

Any  work  on  the  evolution  of  law  which  makes  any  profes- 
sions of  furnishing  a  survey  of  legal  institutions  necessarily 
must  render  account  of  the  ancient  substitute  for  criminal  law, 
of  the  five  main  divisions  of  private  law  —  family,  succession, 


PREFACE 


persons,  property,  and  obligations  —  of  commerce  in  the  field 
of  special  law,  and  lastly,  procedure.  The  legal  categories  of 
the  ancient  world  were  exhausted  by  sins,  rituals,  and  family. 
We  have  sought  to  unite  a  developed  classification  of  legal 
ideas  with  the  legal  life  of  the  first  stages  of  legal  development 
without,  however,  seeking  to  indicate  the  relative  order  of  evo- 
lution of  legal  ideas.  Within  the  more  or  less  prescribed  limits 
of  a  manageable  volume,  an  undertaking  so  pretentious  as  to 
embrace  the  whole  scale  of  legal  ideas  must,  in  compensation 
for  its  range,  omit  to  sound  the  overtones.  It  is  clear  that 
a  book  which  aims  to  be  a  survey  of  legal  institutions  must,  to 
accomplish  its  mission,  shun  the  choice  of  detailed  treatment. 
In  other  words,  length  and  breadth  are  only  rarely  found  in 
combination,  and  of  these  alternatives,  we  have  put  the  em- 
phasis on  the  one  suitable  for  our  purpose. 

It  was  not  possible  to  restrict  these  readings,  as  had  been 
planned  in  the  beginning,  to  materials  already  available  in 
English,  and  in  order  to  fill  in  what  seemed  to  us  to  be  impor- 
tant gaps  in  an  organic  outline  of  the  law,  we  have  inserted 
a  number  of  original  translations  which  now  appear  for  the 
first  time  in  English. 

For  valuable  suggestions  in  the  volumes  now  published,  the 
editors  acknowledge  their  indebtedness  to  Edward  Lindsey, 
Esq.,  of  the  Pennsylvania  bar,  who  has  been  one  of  the  first 
in  this  country,  among  professional  lawyers  at  least,  to  urge 
the  large  importance  of  the  studies  here  represented. 

A.  K. 

J.  H.  W. 

Northwestern  University, 

Chicago,  November,  1914. 


TABLE   OF   CONTENTS 
INTRODUCTION 

PAGE 

Section  1.    Evolution  of  Law 3 

By  Josef  Kohler. 

Section  2.    Ethnological  Jurisprudence 10 

By  Albert  H.  Post. 

Section  3.     The  Origin  of  Legal  Institutions    ....  36 

1.  The  Imitation  Theory 36 

By  Gabriel  Tarde. 

2.  Criticism  of  the  Imitation  Theory       ...       55 

By  Paul  Frederic  Girard. 

Section  4.    Universal  Comparative  Law 61 

By  Georgio  Del  Vecchio. 

PART   I 
LAW  AND  THE   STATE 

CHAPTER  I 

Forms  of  Social  Organization 73 

By  J.  W.  Powell. 

CHAPTER  II 

Evolution  of  the  State 88 

By  Josef  Kohler. 

CHAPTER   III 

Omnipotence  of  the  Ancient  State 92 

by  fustel  de  coulanges. 

CHAPTER  IV 

Chieftainry  and  Kingship 96 

Section  1.   Cultural  Impoi-tauce  of  Chieftainry       ....      96 
By  Josef  Kohler. 
vii 


Vlll  TABLE    OF   CONTENTS 

PAGE 

,.  Section  2.   Authority  of  the  King 99 

By  Fdstel  de  Coclanges. 

CHAPTER  V 

Religion  and  Law 104 

Section  1.    Religious  Origin  of  Ancient  Law 104: 

By  FUSTEL    DE    CODLANGES. 

« 
Section  2.    Religious  Element  in  Hindu  Law 110 

By  Henry  S.  Maine. 

Section  3.   Taboo  as  a  Primitive  Substitute  for  Law       .        .        .     120 

By  Josef  Kohler. 

CHAPTER  VI 

Evolution  op  Criminal  Law 122 

Section  1.    Primitive  Criminal  Law •     122 

By  Richard  R.  Cherry. 
Section  2.   Development  of  Justice o         .     128 

By  L.  T.  Hobhouse. 
Section  3.    The  Origin  of  Punishment 151 

By  Ellsworth  Faris. 

CHAPTER  VII 

The  Forms  of  Law 162 

By  Henry  S.  Maine. 

CHAPTER  VIII 

Methods  of  the  Law's  Growth 173 

By  Henry  S.  Maine. 

■---* 

PART   II 

PERSONS 

CHAPTER  IX 

Kinship 181 

Section  1.   The  Tribe 181 

Section  2.   The  Clan 187 

By  J.  W.  Powell. 


TABLE    OF   CONTENTS  IX 

CHAPTER   X 

PAGE 

The  Patriarchal  Theory  196 

By  George  E.  Howard. 

CHAPTER   XI 

TOTEMISM    AND    ExOGAMY 215 

Section  1.   Exogamy  as  a  Survival  of  Group  Marriage   .        .        .    215 

By  Josef  Kohler. 
Section  2.    Origin  of  Exogamy  and  Totemism         ....     216 

By  Andrew  Lang. 

CHAPTER   XII 

Women  in  Primitive  Society 237 

By  L.  T.  HoBHonsE. 

CHAPTER   XIII 
Marriage 276 

Section  1.   Forms  of  IMarriage 276 

By  JosEF  Kohler.  • 

ection  2.    Tribal  Marriage  Law 277 

By  J.  W.  Powell. 

Section  3.   Religious  Basis  of  the  Family 283 

By  FusTEL  de  Coulanges. 

..  Section  4.   Marriage  in  Greece  and  Rome 285 

By  FuexEL  de  Coolanges. 

CHAPTER   XIV 

Patria  Potestas 291 

By  Henry  S.  Maine. 

CHAPTER   XV 

Women  and  Marriage  under  Civilization 301 

By  L.  T.  HoBHOusE. 

CHAPTER  XVI 
Children  and  the  Family         ........    336 

By  Josef  Kohler. 


X  TABLE    OF   CONTENTS 

CHAPTER   XVII 

PAGE 

Adoptiox  and  Artificial  Relationship 341 

Section  1.   Survey  of  Artificial  Relationships 341 

By  Josef  Kohler. 

^     Section  2.   Religious  Basis  of  Adoption 344 

By  FUSTEL    DE    COULANGES. 

CHAPTER   XVIII 
Slavery 347 

Section  1.   Historical  Importance  of  Slavery 347 

By  Josef  Kohler. 
Section  2.   Theories  of  Slavery 350 

By  Henry  S.  Maine. 

CHAPTER   XIX 

Capitis  Deminutio 353 

By  Rudolph  Soioi. 

CHAPTER  XX 

ExiSTiMATioKis  Minutio 356 

By  Rudolph  Sohm. 

PART   III 
THINGS 


CHAPTER  XXI 

The  Law  of  Property 

Section  1.   Religious  Basis  of  Property 

By  FuSTEL    DE    Ck)ULANGES. 

Section  2:   Development  of  the  Idea  of  Property     .... 

By  L.  T.  HoBirt3usE. 
Section  3.   Early  History  of  Property  and  the  Village  Community 

By  Henry  S.  Maine. 
Section  4.    The  Village  Community  as  a  Primitive  Institution 

By  George  Laurence  Gomme. 


361 
361 


380 


39- 


CHAPTER   XXII 
Origin  of  Commercial  Institutions 
By  Levin  Goldschmidt. 


407 


TABLE    OF   CONTEXTS  XI 

CHAPTER  XXIII 

PAGE 

Primitive  Commebcial  Law 420 

By  Cakl  Koehxe. 

CHAPTER   XXIV 

Barter  and  Transfer 435 

Section  1.   Barter 435 

By  Josef  Kohler. 

Section  2.   Primitive  Transfer  of  Goods 439 

By  Felix  So.mlo. 

CHAPTER  XXV 
Pledge 452 

Section  1.   Forms  of  Pledge  Rights 452 

By  Josef  Kohler. 
Sectioti  2.   The  Pledge  Idea 456 

By  John  H.  "Wigmore. 

CHAPTER  XXVI 

Suretyship 478 

By  Josef  Kohler. 

CHAPTER  XXVII 

Evolution  of  the  Law  of  Contract 481 

Section  1.    The  Fides  Commandment 481 

By  B.   W.  Leist. 
Section  2.    Early  History  of  Contract 498 

By  Hezs'rt  S.  Maine. 
Section  3.   Sponsio  and  Primitive  Contract 512 

By  Pol  Collinet. 

CHAPTER  XXVIII 
Sales  and  Loans  at  Rome         ........    518 

By  Rudolph  Sohm. 

CHAPTER  XXIX 
Interest 531 

Bj'  Josef  Kohler. 


Xll  TABLE   OF   CONTENTS 

CHAPTER  XXX 

FAOB 

Succession 536 

Section  1.   Survey  of  the  Law  of  Succession 536 

By  Josef  Kohler. 
Section  2.   Religious  Basis  of  Inheritance 542 

By  FcrsTEL  de  Coulanges. 
Section  3.   Early  History  of  Testamentary  Succession    .        .        .     553 

By  Henry  S.  Maine. 

PART   IV 
PEOCEDURE 

CHAPTER   XXXI 

Procedure 575 

Section  1.   Survey  of  the  Law  of  Procedure    .....     575 

By  Josef  Kohler. 
Section  2.   Ancient  Magistracy 580 

By  EcSTEL  DE  Coulanges. 
Section  3.   Primitive  Forms  of  Legal  Remedies      ....     586 

By  Henry  S.  Maine. 
Section  4.    The  Ordeal  and  the  Oath 609 

By  Gustave  Glotz. 
Section  5.   Ancient  Formalism .     638 

By  Andreas  Heusler. 
Section  6.    Ancient  Semitic  Procedure 654 

By  Stanley  A.  Cook. 
Section  7. /Ancient  itoman  Procedure  J 668 

By  Rddolph  Sohm. 
Section  8,   Evolution  of  Procedure 691 

By  Gabriel  Tarde. 


% 


PRIMITIVE  AND  ANCIENT  LEGAL 
INSTITUTIONS 

INTRODUCTION 

Section  1.    EVOLUTION  OF  LAW 
By  Josef  Koiiler 

Section  2.    ETHNOLOGICAL  JURISPRUDENCE 
Br  Albert  H.  Post 

Section  3.    THE  ORIGIN  OF  LEGAL  INSTITUTIONS 

'  No.   1.     THE   IMITATION   THEORY 
By  Gabriel  Tarde 

No.  2.     CRITICISM   OF   THE   IMITATION  THEORY 
By  Paul  Frederic  Girard 

Section  4.    UNIVERSAL  COMPARATIVE  LAW 

By  Georgio  Del  Vecchio 


EVOLUTION  OF  LAW 

Volume  II 

PRIMITIVE   AND   ANCIENT   LEGAL 
INSTITUTIONS 

INTRODUCTION 


Section  1 

EVOLUTION   OF   LAW  i 

Comparati\t:  legal  history  is  a  science  of  most  recent  date. 
In  the  period  of  our  juristic  studentship,  very  few  persons  had  any 
notion  that  the  deepest  roots  of  legal  history  and  legal  philosophy 
were  here  to  be  found.  If  our  instructors,  not  quite  twenty  years 
ago,  when  we  ourselves  listened  as  students  in  the  lecture  halls, 
had  spoken  of  the  laws  of  primitive  peoples,  we  would  have  been 
as  little  impressed,  as  might  have  been  the  elegant  humanists  of 
the  sixteenth  century  if  someone  had  told  them  of  the  language  of 
the  Hottentots  or  the  Bushmen.  ...  In  the  same  way  that  the 
study  of  Germanic  law  has  brilliantly  justified  its  existence  through 
the  rich  discoveries  which,  from  day  to  day,  it  has  laid  at  our  feet, 
so  also  comparative  legal  history,  by  the  fulness  of  its  results,  the 
width  of  its  horizon,  and  a  cultivation  of  the  legal  historical  sense, 
will  generously  render  compensation  for  the  field  of  activity  al- 
lowed to  it.  The  traditions  of  Roman  law,  and  the  monuments 
of  the  Latin  language  go  back  to  a  time  covered  by  night  and 
mist ;  and  not  even  the  most  acute  vision  will  be  suJBBcient  to  pene- 
trate this  veil,  and  look  upon  the  facts  and  forces  which  lie  in  the 

MBv  Josef  Kohler  ;  from  Griinhut's  "Z.  f.  d.  privat- und  offentliche 
Recht,'"  Bd.  XIV  (1887),  p.  410  seq.;  translated  by  Albert  Kocourek.] 


4  INTRODUCTION  [§  1. 

depths  of  the  past.  Everything  attempted  by  way  of  conjecture 
proceeds  only  from  specious  hypothesis,  —  especially  if  the  in- 
vestigator is  unable  to  ^e-li^•e  the  ideas,  feelings,  and  point  of  view 
of  past  ages,  in  his  effort  to  reconstruct  the  small  fragments  of 
ancient  legal  life  on  the  basis  of  the  ideas  of  the  present  day,  — 
just  as  it  would  be  with  the  ethnologist  who  might  seek  to  explain 
the  remains  of  the  weapons  of  the  lake  dwellers  by  comparison 
with  the  firing  arms  of  modern  times.  Germanic  law  leads  us 
back  farther  into  the  primitive  age  than  Roman  law ;  but  even  the 
oldest  sources  of  Germanic  law,  Tacitus,  the  Lex  Salica,  and  the 
most  ancient  records,  tell  of  the  old  institutions  a  story  which  is 
highly  fragmentary  and  unsatisfactory. 

Thus,  we  come  to  the  point  reached  by  the  investigator  who 
searches  the  monuments  of  the  Latin  or  Germanic  stem  languages 
to  their  origin  where  he  encounters  what  seems  an  invincible  in- 
terrogation. What  has  been  the  course  of  development  of  these 
perfected  systems  of  language  in  reaching  their  position  of  organic 
symmetry  ?  In  what  way  is  an  explanation  to  be  given  of  the  con- 
spicuous affinities,  on  one  hand,  and  the  remarkable  differentiation, 
on  the  other,  among  languages?  Comparative  philology  has 
given  the  answer;  it  has  established  the  elements  of  language;  it 
has  sought  to  show  how  language  from  the  first  expression  of 
human  needs  has  become  the  trustworthy  instrument  of  man's 
mental  faculties,  in  an  uninterrupted  evolution,  representing  the 
most  refined  sublimate  of  ideas,  and  the  most  delicate  nuances  of 
feeling ;  and  it  explains  how,  with  departures  from  an  original 
tongue,  individual  languages  have  developed  according  to  anal- 
ogies and  following  various  laws  of  growth  —  how,  in  the  construc- 
tion of  languages,  the  great  law  of  organic  nature,  unity  in  diver- 
sity, has  been  maintained.  Comparative  law  has  the  same  func- 
tion in  the  sphere  of  law,  as  the  science  of  comparative  philology 
in  the  field  of  language  ;  it  is  its  mission  to  explore  the  path  of  legal 
development  from  its  most  primitive  point  of  beginning  to  the 
stage  where  it  enters  the  domain  of  the  science  of  legal  history. 
Such  a  science,  it  must  be  conceded,  would  have  been  in  vain,  if 
the  law  were  an  accidental  creation,  the  sport  of  chance,  in  which 
case  the  study  of  peoples  would,  indeed,  disclose  laws,  but  not  law ; 
it  would  exhibit,  even,  an  interesting  profusion  of  details,  a  chaos 
of  particulars,  without  organization,  and  wanting  in  regularity  of 
development.  Happily,  there  is  no  danger  of  stumbling  upon  such 
objections,  since  in  this  day  there  may  no  longer  be  any  question, 
that  the  law  is  not  the  chance  product  of  profitable  and  unprofitable 


§  1.]  EVOLUTION    OF    LAW  5 

hours ;  but  is  the  result  of  an  innately  reasonable  impulse  oi 
humanity,  a  sociological  process  pushed  forward  by  necessity 
through  the  coexistence  of  reasonable  beings  with  material  and 
spiritual  wants/  and  which  therefore,  like  every  evolutionary  pro- 
cess which  expresses  reason,  has  its  own  principles  and  eternal  laws. 

x4nother  proposition  opens  the  way  tlirough  the  countless  turns 
of  evolution  in  which  the  idea  of  law  struggles  to  unfold  —  the 
essential  sameness  of  the  factors  of  human  development  among  the 
most  diverse  branches  of  mankind.  If  this  proposition  is  valid, 
then  it  is  certain  that  in  a  definite  stage  of  legal  development, the 
legal  systems  of  the  most  diverse  peoples  will  show  secondary  dif- 
ferences, but  in  the  midst  of  these  differences  must  exhibit  a  unify- 
ing principle.-  This  truth  is  one  of  the  most  brilliant  achievements 
of  modern  ethnology.  The  science  of  ethnology  has  not  only  dem- 
onstrated general  similarities,  but  also  the  most  striking  anal- 
ogies in  detail,  —  analogies  of  institutions  not  only  of  a  kind  which 
lie  close  to  human  nature,  but  also  such  as  relate  to  the  most  in- 
frequent, bizarre,  and  unnatural  customs  of  peoples  ^  —  analogies 
which  cannot  be  explained  as  borrowings,  but  which  are  independ- 
ent phenomena  appearing  among  tribes  where  no  trace  of  ethnic 
connection  is  to  be  found.  This  principle  applied  to  the  law 
immeasurably  widens  our  historical  horizon;  and  the  thick  fog 
which  has  surrounded  ancient  times  is  illuminated.  In  the  legal 
systems  of  extant  primitive  peoples  are  found  the  analogies  of 
those  legal  conditions  under  which  our  most  ancient  ancestors 
lived,  of  which  ail  recollection  has  died  away  and  every  record  has 
faded .^  And  how  could  it  have  been  otherwise  in  the  law  ?  Hun- 
ger and  love  have  been,  from  the  beginning  of  time,  primal  im- 
pulses of  the  human  race.  Solicitude  for  the  individual,  as  well  as 
solicitude  for  the  species,  has  burrowed  under  human  nature,  pro- 
ducing endlessly  inexhaustible  conflicts.  Hunger  and  love  have 
everywhere  git-en  birth  to  the  law ;  and  their  primitive  force  has 
generated  one  legal  institution  after  the  other. 

This  new  science  to-day  is  revealed  to  us  in  immeasurable  sig- 
nificance. In  the  same  wa}^  that  philology  has  undertaken  from 
the  most  scanty  germs  of  language  construction  to  explore  the 
compounded  agglutinative  forms  of  speech  to  reach  the  inflectional 
languages,  and,  again,  to  proceed  from  the  lowest  to  the  highest 
forms  of  language,  so,  also,  comparative  legal  science  has  the  mis- 

1  See  my  article  in  "  Z.  f .  vergleichende  Rechtswissenschaft,"  III,  p.  161  seq. 
''  Cf.  my  article  in  "Krit.  Viertoljahresschrift,"  X.  F.  IV,  p.  176  seq. 
^  Cf.  my  article  in  "Z.  f.  verg.  R.,"  V,  p.  400  scq. 
*  Cf.  my  article  in  "Krit.  Vierteljahresschrift,"  N.  F.  IV,  p.  175  seq. 


6  INTRODUCTION  [§  1. 

sion  of  showing  the  development  of  the  law  from  the  earliest  germi- 
nation of  legal  consciousness  to  the  time  when  it  has  grown  into 
a  mighty  tree,  and  thrown  its  shade  over  the  world. ^ 

When  we  contemplate  this  development,  we  must  shudder  to 
think  of  the  enormous  effort  which  mankind  must  make  to  bring 
forth  a  legal  institution.^  To  achieve  the  institution  of  marriage 
in  the  modern  sense,  or  the  parental  relationship,  or  the  law  of 
contract,  and  to  attain  a  State  which  looks  after  all  interests,  re- 
quired an  enormous  outlay  of  human  energies  involving  not  alone 
individuals  but  peoples ;  thousands  of  young  lives  were  blighted, 
thousands  of  hearts  were  broken,  and  streams  of  blood  flowed  to 
enable  a  fruitful  new  idea  to  come  into  existence ;  just  as  it  re- 
quired the  powerful  expenditure  of  all  the  forces  of  nature  to 
raise  up  our  organic  world  out  of  its  original  imperfection. 

Comparative  legal  investigation  deals  with  the  evolutionary 
side  of  the  law ;  by  no  means,  however,  with  that  desolate  and 
sterile  kind  of  evolution  which  derives  each  development  from  an 
accidental  and  external  coincidence  of  particular  facts ;  but,  on  the 
contrary,  with  the  spiritual  point  of  view  which  assumes  that  the 
world-process  involves  an  inherently  reasonable  course  of  devel- 
opment, an  evolutionary  struggle  which  employs  mechanical 
factors  only  for  the  attainment  of  its  ends.  Evolution  must  con- 
tend against  a  profusion  of  opposing  elements ;  it  must  make  way 
against  human  errors,  against  obstinacies,  rigidity,  tenacity,  and 
defiance ;  but  it  succeeds  in  pushing  forward,  and  where  the 
straight  road  of  progress  is  blocked,  it  finds  a  devious  route  for  the 
accomplishment  of  its  purposes.  When  obstinacy  and  reserve 
stand  in  the  way,  it  decomposes  them  by  a  withering  process  of 
centuries.  It  sinks  its  roots  into  hundreds  of  fissures  and  crevices, 
and  imperceptibly  one  phase  of  life  is  extinguished  to  give  place  to 
another.  The  movement  of  evolution  may  appear  imperfect  in 
that  it  does  not  imitate  the  speed  of  the  lightning,  but  the  power  of 
resistance  only  with  which  evolution  contends,  is  imperfect,  when 
we  bear  in  mind  the  end,  and  only  the  end,  of  this  struggle.  The 
way  to  the  end  is  justified  even  though  it  proceeds  through  eons 
of  time.    Philosophically  considered,  time  is  only  an  inferior  ele- 

^  Cf.  my  essay,  "Das  Reeht  als  Culturerseheinung,"  p.  5. 

2  [As  these  lines  are  being  translated  the  whole  world  is  feeling  the 
shock  of  the  bloody  clash  of  European  armies,  in  which  struggle  the  learned 
author's  country  is  one  of  the  leading  combatants.  Nothing,  it  seems  to 
us,  can  more  vividly  illustrate  the  truth  of  the  last  sentence  of  the  text, 
than  this  destructive  conflict.  Mankind  has  not,  up  to  this  moment,  yet 
paid  the  price  which  must  be  rendered  before  there  can  be  granted  to  it 
the  institution  of  international  peace.] 


§  1.]  EVOLUTION    OF    LAW  7 

ment  in  the  phenomena  of  things.  Here,  as  elsewhere,  in  nature, 
perfection  is  not  measured  by  human  standards;  for  man  is  a 
temporal  and  limited  being,  and  is  not  the  measure  of  things.^ 

Evolution  makes  use  of  men  and  nations  against  their  will.^ 
Struck  by  an  inexplicable  notion  or  desire  they  seek  a  lost  trifle 
and  find  a  treasure  of  cultural  progression.  INIisgiving  and  timidity 
lay  hold  of  Hamlet;  his  hand  is  restrained  by  an  unaccountable 
feeling ;  the  sword  remains  in  its  scabbard ;  and  the  revenge  of 
blood  is  stayed.^  The  ambition  of  a  half-barbarous  INIacedonian 
demolished  the  Persian  empire,  and  a  flood  of  Oriental  culture 
poured  out  over  the  Occident. 

We  are  now  competent  to  appreciate  the  unending  benedictions 
of  culture.  We  shall  speak  no  more  of  the  Golden  Age  of  man  in 
a  state  of  nature  from  which  civilization  led  him  to  a  condition  of 
misery ;  on  the  contrary,  we  shall  hail  culture  as  the  lamp  which 
has  shown  the  way  to  the  regions  of  light  from  the  darkness  of 
night.  It  is  the  highest  consolation  which  science  can  grant  for 
the  future,  that  it  is  allotted  to  humanity  to  achieve  a  better  end, 
and  a  more  exalted  form  of  existence.  Therefore,  let  us  interlock 
anew  with  the  wheels  of  cultural  and  legal  evolution !  The  more 
powerfully  our  forces  are  applied,  the  quicker  will  mankind  be 
carried  to  its  higher  destiny,  and  the  sooner  will  one  mission  after 
another  of  humanity  be  fulfilled  !  However  great  the  sorrows  and 
pains  may  be,  with  which  mankind  is  afflicted,  they  have  a  reason- 
able meaning,  and  an  evolutionary  purpose;^  for  every  stage 
of  historical  progress  involves  suffering.^  In  order  that  a  fort  may 
be  carried,  thousands  must  fall,  and  the  flag  of  victory  is  planted 
only  over  the  bodies  of  the  dead.  Sarastro's  reign  first  triumphs 
after  Pamina  is  plundered.  Wrongs  and  sufltering  are  the  soil 
upon  which  the  flower  of  the  law  blossoms.^ 

1  Everything  which  has  been  advanced  against  teleology,  touches  only 
an  anthi-'opomorphic  or  individualist  teleology  which  always  applies  a 
human  standard,  or  which  denies  that  mankind  is  organic  in  construction, 
for  which  purpose  individuals  alone  are  considered  as  factors  in  evolution. 

'^  Cf.  mv  article  "  Rechtsgeschichte  und  Weltentwickelung,"  in  "Z.  f. 
V.  R.'"'  V,  p.  328  se^. 

3  The  objections  raised  against  my  Hamlet  interpretation  rest  on  the 
most  singular  esthetic  misunderstanding.  Immortal  Shakespeare,  why 
did  you  not  provide  your  Hamlet  with  its  fabula  docet ! 

^  Cf.  mv  "Aus  dem  Lande  der  Kunst,"  p.  18  seq. 

6  George  Eliot,  "Mill  on  the  Floss"  (Germ,  trans,  by  Kolb,  II,  p.  14.5). 

«  Even  the  application  of  law  brings  with  it  unmerited  suffering.  When 
the  head  of  the  father  of  a  family  falls  under  the  ax,  the  whole  family  is 
plunged  into  misery.  "We  can  think  of  no  retribution  which  does  not 
exceed  its  purpose  and  inflict  undeserved  pain."  —  George  Eliot,  op.  cit.^,^ 
p.  94.  Cf.  also,  my  "Shakespeare  vor  dem  Forum  der  Jurisprudenz, 
p.  95  seq.,  and  the  "Nachwort,"  p.  1  seq. 


8  INTRODUCTION  [§  1. 

And  now,  what  is  the  ultimate  destiny  of  mankind  with  its 
struggle  and  effort?  The  question  is  one  of  philosophy,  but  yet 
the  law  may  share  it,  since  the  law  is  one  of  the  chief  factors  of 
human  progress.  The  end  of  human  development  is  divine  unity 
through  knowledge  (science),  perception  (art),  and  metaphysical 
feeling  (religion).  The  cultivation  of  all  these  highest  objects  is 
possible  only  under  the  greatest  refinement  of  social  condition,  — 
under  conditions  which  the  law  alone  can  bring  about.  Legal 
science,  in  that  it  operates  to  further  these  conditions,  levels  the 
road  upon  which  science,  art,  and  religion  celebrate  their  triumphal 
march.  Jurisprudence,  however,  does  not  accomplish  its  mission 
by  this  practical  activity  ;  like  every  science  and  art,  it  has  also  its 
own  independent  purposes.^  And  like  all  knowledge,  knowledge 
of  the  law  is  one  of  the  most  important  objects  of  the  human  mind. 
We  may  regard  it  as  one  of  the  highest  emanations  of  a  god-like 
force  which  sways  mankind,  and  leads  it,  even  against  its  own  will, 
to  its  destiny. 

And  what  would  be  the  life  of  the  nations  without  science  ?  And 
what  of  its  joys,  its  fears  and  hopes,  its  tenderness  with  its  sighs 
and  longings,  its  family  life  with  its  charms  and  cares,  its  commer- 
cial activities  with  all  their  changing  fortunes  and  their  hurry  and 
bustle,  —  if  all  this  were  to  be  swallowed  up  in  the  maw  of  time 
without  ultimate  result?  And  what  record  would  be  left  after 
thousands  of  years  of  our  struggle  for  existence,  of  our  efforts  and 
striving,  if  it  were  not  for  the  monuments  of  science  and  art? 

Dimmi,  o  luna :  a  che  vale 
Al  pastor  la  sua  vita  ?  ^ 

A  point  needs  to  be  emphasized  against  the  aberrations  into 
which  the  philosophy  of  nature  and  history  once  fell ;  it  is  not  for 
us  to  master  facts,  or  to  substitute  fancies  for  science.  A  phantas- 
magoria is  not  science,  and  alchemy  is  only  a  divergence  from  the 
proper  line  of  effort.  Inexhaustible  and  unfathomable  are  the 
ways  of  nature  and  history.  It  would  be  a  frivolous  endeavor  to 
attempt  to  interpret  them  with  our  ideas  —  ideas  which  span  but 
a  small  part  of  what  has  come  to  pass.  Against  the  great  abun- 
dance of  enduring  nature  the  narrowness  of  our  limited,  particular 
existence  must  make  head.     Therefore  we  must  undertake,  dili- 

^  Cf.  my  article,  "  RechtsgescMchte  imd  Culturgeschiclite,"  in  'Griin- 
hut's  Z.,"  XII,  p.  590  seq. 

'^  Leopardi,  "Canto  notturo  di  un  pastore  errante  dell'  Asia"  (ed. 
Capellina,  Milan,  1883),  p.  91.  [Canto  Notturho,  Poem  xxiii,  "The 
Poems  of  Leopardi,"  edited  by  Francis  Brooks,  Manchester,  1909.] 


§  1.]  EVOLUTION    OF    LAW  9 

gently,  an  investigation  of  details.  No  particular  is  so  unimpor- 
tant, no  tribe  of  people  is  so  lacking  in  interest  even  though  it  be 
one  of  the  most  degraded  anthropomorphous  types,  and  no  his- 
torical tradition  of  ancient  times  is  so  scanty,  as  not  to  be  worthy 
of  attention.^  What  is  a  philosophy-  of  history  without  facts? 
What  is  an  interpretation  of  legal  evolution  without  the  rich  ob- 
servation of  this  development  itself  ?  If  one  speaks  constantly  of 
the  barbarism  of  earlier  legal  systems,  it  is  not  to  commend  as 
worthy  of  imitation,  but  as  an  object  of  the  movement  of  culture. 
The  age  of  barbarism  must  be  profoundly  studied ;  for  only  his- 
torical knowledge  gives  us  freedom  and  widens  our  horizon,  in 
order  that  we  may  understand  the  laws  of  evolution.  Of  course, 
no  botanist  would  want  to  fill  the  streams  with  algte,  but  yet,  he 
finds  in  them  the  evidence  of  the  eternal  laws  governing  the  vege- 
table kingdom. 

After  the  materials  are  collected,  the  task  will  be  to  abstract 
from  them  principles,  to  discover  the  operative,  constructive 
impulse  manifested  in  the  positive  movement  of  progress,-  and  to 
discover  what  was  the  elastic  force,  and  what  the  machinery  which 
lifted  humanity  from  one  level  of  development  to  another,  until 
culture,  and  even  superculture,  replaced  the  rudest  forms  of 
existence.  This  procedure  will  be  no  dift'erent  than  the  procedure 
of  science  in  general.  It  is  the  method  of  the  philologist  who  in- 
vestigates the  laws  of  the  mutation  of  consonants,  or  traces  back 
verbal  abstractions  to  sensible  ideas.  It  is  the  method  of  the  ge- 
ologist who  explains  the  evolutionary  stages  of  the  earth,  by  the 
stratification  of  the  rocks,  and  by  the  discovery  of  petrified  remains 
of  life.  Finally,  it  is  the  method,  in  general,  of  the  investigator, 
who  discloses  in  the  flow  of  phenomena  the  eternal  laws  which 
govern  the  universe. 

1  ''To  the  mind  which  looks  out  from  a  higher  point  of  view,  nothing 
is  unimportant,  since  everything  may  be  regarded  as  having  an  endless 
chain  of  relations."  —  George  Eliot,  op.  cit.  (Kolb's  trans.),  II,  p.  145. 

2  Against  the  remarks  of  Dargun  (in  "  Rechtsgeleerd  Magazijn,"  1886, 
p.  391  seq.)  it  may  be  emphasized  that  the  evolution  of  law  does  not  pro- 
ceed according  to  mathematical  rule  any  more  than  the  development  of 
culture  in  general ;  since  individual  circumstances  are  endless  in  their 
differences,  and  in  that  now  one  factor,  and  then  another,  is  predominant. 
This,  at  the  same  time,  is  one  of  the  allurements  presented  by  the  maui- 
f9ldness  of  legal  history.  Even  tribes  governed  by  the  principle  of  Father- 
right,  frequently  retain  the  rule  of  succession  through  nephews ;  and  the 
institution  of  wife-purchase  may  persist  for  centuries  alongside  of  INIother- 
right.  When,  as  among  many  tribes,  the  husl^and  must  defend  his  pos- 
session of  his  wife  against  the  tribe,  this  may  be  explained  as  a  conspicu- 
ous survival  of  a  condition  where  the  wife  belonged  to  the  tribe.  What 
at  one  time  was  a  right  frequently  appears  with  the  greatest  stubbornness 
in  the  form  of  a  wrong. 


10  INTRODUCTION  l§  2. 

Section  2 
ETHNOLOGICAL  JURISPRUDExNCE  ^ 

Ethnological  jurisprudence,  the  most  recent  branch  of  the 
science  of  law,  so  richly  elaborated  by  every  method  of  research, 
has  still  to  battle  for  its  existence.  Wide  circles  in  the  world  of 
juridical  learning  utterly  ignore  it,  or  assume  a  hostile  and  at  best 
sceptical  attitude  towards  it.  Neither  the  history  of  law  nor  the 
philosophy  of  jurisprudence  has  accorded  it  scientific  recognition, 
and  even  the  tenability  of  the  principles  upon  which  it  is  based  has 
been  characterised  as  highly  questionable. 

It  is  universally  true  that  every  new  departure  in  science  at  first 
meets  with  opposition,  and  that  it  cannot  aspire  to  recognition 
until  it  is  in  a  position  to  present  results  that  are  incontrovertible. 
Only  by  presenting  such  results  can  it  acquire  recognised  standing 
in  the  roll  of  the  sciences,  and  only  by  the  elaboration  of  these 
results  can  it  repel  definitively  the  attacks  directed  against  it. 
But  this  process  may  be  expedited  by  giving  in  the  clearest  and 
most  explicit  terms  possible  a  sketch  of  its  underlying  principles, 
and  so  in  the  present  case,  while  ethnological  jurisprudence  is  still 
in  the  initial  stages  of  its  development,  it  will  not  be  amiss,  in  the 
interests  of  our  study,  to  attempt  a  substantiation  of  its  scientific 
pretensions.  We  shall,  by  so  doing,  at  least  throw  obstacles  in 
the  way  of  superficial  criticism  from  the  traditional  standpoint. 

Ethnological  jurisprudence  stands  in  marked  contrast  with  the 
tendencies  that  at  present  dominate  the  science  of  law.  Its 
method  of  procedure  is  fundamentally  inductive,  and  has  for  its 
starting-point  the  customs  and  jural  concepts  of  all  the  nations  of 
the  earth.  Its  method  furthermore  is  specifically  comparative- 
ethnological  ;  that  is  to  say,  it  is  on  the  one  hand  socio-psycholog- 
ical  and  on  the  other  hand  comparative  in  the  sense  that  it  pro- 
ceeds by  comparison  even  where  the  historical  connexion  between 
the  facts  of  the  jural  life  is  lacking. 

It  is  thus  opposed  to  — 

1.  Every  philosophy  of  jurisprudence  which  is  essentially  de- 
ductive in  its  methods. 

2.  Every  system  of  jurisprudence  founded  upon  the  law  of  a 
single  nation  or  a  single  group  of  nations. 

1  [By  Albert  Hermann  Post.  Translated  from  the  German  by 
Thomas  J.  McCormack.  Reprinted,  by  permission,  from  "The  Open 
Court,"  Vol.  XI,  Nos.  11,  12  (November,  December,  1897).] 


§  2.]  ETHNOLOGICAL   JURISPRLT)ENCE  11 

3.  Every  system  of  jurisprudence  which  is  individuo-psycho- 
logical  in  its  origin. 

4.  All  investigations  of  historical  jurisprudence  which  on  prin- 
ciple do  not  quit  the  ground  of  historical  connexion  in  the  treat- 
ment of  the  facts  of  jural  life. 

These  innovations  have  given  to  ethnological  jurisprudence  its 
peculiar  impress,  and  it  is  this  peculiarity'  that  demands  scientific 
vindication. 

The  first  point  of  view  that  presents  itself  for  the  examination 
of  the  jural  order  is  unquestionably  the  individuo-psychological. 
For  the  domain  of  jural  life  comprehends  the  action  of  the  forces 
that  emanate  from  individuals,  and  the  law  finds  its  most  immedi- 
ate expression  in  the  jural  sense  of  the  individual.  It  is  daily  born 
anew  in  the  depths  of  the  human  soul.  Here  it  appears  in  the 
form  of  passion  and  desire,  so  soon  as  a  misdeed  is  committed, 
and  urges  to  vengeance  and  expiation.  The  written  law  of  statute- 
books  and  the  courts,  however,  is  but  the  mediate  expression  of  the 
jural  life. 

The  first  point  of  view  presenting  itself  is  therefore  the  follow- 
ing :  to  regard  all  jural  order  as  the  product  of  the  differences  and 
coincidences  of  the  jural  sense  of  human  individuals,  and  to  en- 
deavor to  explain  the  same  from  the  natiu-e  of  man,  that  is,  from 
the  nature  of  the  individual. 

This  idea  still  rules  supreme  in  modern  jurisprudence.  We 
meet  on  all  sides  with  arguments  explanatory  of  state  and  law, 
which  are  derived  from  the  nature  of  the  human  individual.  And 
seeing  that  the  individuo-psychological  method  of  investigation 
derives  its  materials  directly  from  the  living  source  of  life,  while 
the  socio-psychological  starts  from  the  jural  phenomena  of  the  life 
of  all  nations,  deriving  thence  its  inductions  as  to  the  causes  which 
underlie  the  same,  certainly,  if  it  were  possible  to  explain  jural  life 
adequately  from  the  nature  of  the  human  individual,  the  individuo- 
psychological  method  would  have  the  preference. 

But  this  latter  method  does  not  lead  far  towards  the  under- 
standing of  jural  life.  The  sequence  of  causes  soon  vanishes  in  so 
inaccessible  a  sphere  as  the  personality  of  the  individual,  and  true 
scientific  inquiry  is  displaced  by  ingenuity  and  sophistry. 

Viewed  from  the  individuo-psychological  standpoint,  the  facts 
of  jural  life  are  partly  matter  of  our  subjective  and  partly  matter  of 
our  objective  experience. 

Matter  of  subjective  experience  is  merely  our  own  individual 
jural  sense,  that  is  our  individual  consciousness  as  bearing  upon 


12  INTRODUCTION  [§  2. 

right  and  wrong.  This  indivickial  jural  sense  is  made  up  of  a  sum- 
total  of  psychical  activities,  of  which  we  become  conscious  when 
from  inward  or  outward  excitation  we  are  confronted  with  the  ques- 
tion as  to  whether  something  is  right  or  wrong.  These  psychical 
activities  are  partly  feelings  and  desires,  and  partly  judgments,  the 
former  tending  towards  action  and  the  latter  tending  towards  ex- 
pression by  word  or  sign.  Jural  feelings  are  principally  feelings  of 
indignation  as  when  an  injustice  is  experienced  by  an  individual,  a 
feeling  of  fear  as  when  the  individual  is  affected  by  an  inclination 
to  do  wrong,  a  feeling  of  penitence  as  when  the  indi^'idual  has  com- 
mitted a  wrong.  With  the  feeling  of  indignation  is  joined  a  desire 
for  vengeance,  with  the  feeling  of  penitence  a  desire  of  atonement, 
the  former  tending  towards  an  act  of  vengeance  and  the  latter 
towards  an  act  of  expiation.  The  jural  judgments  of  individuals 
are  not  complete  judgments ;  they  are  based  upon  an  undefined 
sense  of  right  and  wrong.  In  the  consciousness  of  the  individual 
there  exists  no  standard  of  right  and  wrong  under  which  every 
single  circumstance  giving  rise  to  the  formation  of  a  jural  judgment 
can  be  subsumed.  A  simple  instinct  impels  the  individual  to  de- 
clare an  action  right  or  wTong. 

It  thus  becomes  evident  that  the  individuo-psychological  analy- 
sis of  the  individual  jural  sense,  in  so  far  as  it  rests  upon  subjective 
experience,  can  afford  only  meagre  results.  All  psychical  phe- 
nomena of  the  jural  sense  are,  so  far  as  regards  our  subjective 
experience,  ready-made  products.  The  psychological  develop- 
ment of  jural  emotions,  desires,  and  judgments,  is  not  accessible 
to  our  inner  experience.  The  psychological  processes  whereby  we 
become  conscious  of  jural  emotions,  desires,  and  judgments,  lie 
without  the  reach  of  consciousness. 

Further,  subjective  observation  of  the  psychical  processes  from 
which  the  jural  sense  springs,  bears  the  same  character  as  subjec- 
tive observation  of  psychical  processes  generally.  Systematic 
self-observation  is  impossible,  inasmuch  as  the  observing  subject 
and  the  observed  object  are  one  and  the  same,  and  the  very  act 
of  observing  thus  modifies  the  object  observed.^  It  is  likewise 
impossible  to  evoke,  arbitrarily  or  artificially,  a  jural  desire  or  an 
instinctive  jural  judgment ;  they  always  appear  instantaneously 
and  unbidden  in  consciousness.  As  material  for  observation, 
accordingly,  there  remains  only  the  recollection  of  such  occurrences 
in  the  mind  of  the  individual. 

1  Comte,  "Positive  Philosophj^"  abridged  by  Rig;  German  translation 
by  Kirchmann,  1883,  I.,  p.  13  £f.     Wundt,  "  Logik,"  1883,  II.,  p.  482. 


§  2.]  ETHNOLOGICAL   JURISPRLTDENCE  13 

Still  another  drawback  to  the  employment  of  subjective  obser- 
vation for  scientific  inquiry  is  the  fact,  that  it  is  almost  utterly 
impossible  to  distinguish  in  general  between  jural  feelings,  desires, 
and  judgments,  and  moral  feelings,  desires,  and  judgments. 

Scientific  inquiry  attains  more  favorable  results  when  it  adopts 
as  the  subject  of  investigation  the  expressions  of  the  individual 
jural  conscience  in  the  external  world  of  sense  —  that  is,  the  phe- 
nomena of  the  individual  jural  sense  as  appearing  in  acts  on  the  one 
hand  and  in  words  and  signs  on  the  other.  Here  self-observation 
discovers  facts  which  are  represented  as  events  in  the  outward  world 
of  sense,  and  which  are  consequently  subject  to  external  obser- 
vation. True,  the  observation  of  the  outward  expressions  of  the 
individual  jural  conscience  in  acts,  words,  and  signs  affords  scarcely 
more  material  for  the  psychological  analysis  of  the  individual  jural 
sense  than  the  direct  inward  observation  of  the  same.  The  ma- 
terial for  observation  increases,  however,  if  the  observer,  not  con- 
fining himself  to  the  expressions  of  his  own  jural  sense,  compares 
with  these  the  expressions  of  the  jural  sense  of  other  people,  or  even 
compares  the  expressions  of  the  jural  sense  of  other  people  with 
each  other. 

From  this  method  dissimilarities  in  the  phenomena  of  the  jural 
consciousness  appear  at  once,  and  these  are  in  a  high  degree  adapted 
to  throw  light  upon  its  nature.  In  the  first  place  it  is  possible  to 
distinguish  differences  in  the  jural  sense  of  individuals  according 
to  their  ages.  It  is  possible  to  follow  the  jural  sense  of  children  in 
its  development.  We  are  also  able  to  fix  degrees  of  jural  sense  in 
youth  and  manhood,  perhaps  too  in  old  age.  It  will  be  possible, 
furthermore,  to  point  out  variations  of  jural  sense  between  the 
male  and  female  sexes.  Then  further,  there  are  to  be  noted  marked 
irregularities  of  jural  sense  resulting  from  derangement ;  which 
derangement  may  rest  on  biological  as  well  as  sociological  causes. 
Mental  diseases,  affecting  the  whole  consciousness  of  the  individual, 
affect  the  jural  sense  also.  Besides  these,  there  are  a  great  number 
of  persons  whose  jural  sense,  though  not  disturbed  by  any  psychi- 
cal disarrangement,  is  far  below  the  normal  state ;  namely,  crim- 
inals. Such  persons,  endowed  with  a  jural  sense  of  a  socio-patho- 
logical  kind,  furnish  the  material  for  a  separate  branch  of  psychol- 
ogy; viz.,  criminal  psychology.  IVIarked  irregularities  in  the 
individual  jural  sense  may  be  further  distinguished  according  to 
the  social  circle  in  which  the  individual  moves.  Even  in  a  single 
nation  these  irregularities  are  quite  considerable ;  according  to 
caste,  culture,  occupation,  politics,  religion,  and  the  like.     Yet 


14  INTRODUCTION  [§  2. 

the  most  considerable  deviations  are  to  be  found  between  the  jural 
consciences  of  difl'erent  peoples,  and  they  are  more  considerable 
according  as  the  difference  in  civilisation  is  greater,  or  as  the  devel- 
opment of  the  same  has  been  more  unique. 

In  all  these  ways  it  would  be  possible  to  observe  the  expressions 
of  the  individual  jural  sense  and  by  a  process  of  individuo-psy- 
chological  comparison  to  arrive  at  scientific  results.  It  is  evident, 
though,  that  it  would  be  difficult  to  collect  the  material  for  obser- 
vation, and  that  the  observations  of  individuals  themselves  to 
this  end  would  be  subject  to  innumerable  sources  of  error. 

These  observations  could  not  acquire  scientific  value  unless 
made  upon  the  most  extensive  plan,  and  with  persons  of  different 
ages,  different  sex,  different  intellectual  ability,  different  social 
standing,  and  different  nationality ;  and  unless  the  material  accu- 
mulated were  so  considerable  that  all  the  sources  of  error  in  indi- 
vidual observation  could  be  eliminated.  To  limit  the  observations 
to  a  narrow  field,  would  necessarily  yield  incorrect  results ;  for  it 
is  now  beyond  question  that  the  jural  sense  of  individuals  is  sub- 
ject to  the  most  varied  differentiations.  The  most  distorted 
presentation  of  all,  however,  is  produced  when  the  inquirer  confines 
himself  mainly  to  his  own  individual  jural  sense,  and  persuades 
himself  that  this  should  determine  the  conduct  of  humanity.  He 
has  here  merely  systematised  his  own  jural  consciousness ;  mani- 
festly a  doleful  scientific  result. 

How  is  it  possible  to  observe  the  manifestations  of  the  individual 
jural  sense,  which  appear  only  instinctively  and  occasionally, 
exhaustively  enough  to  obtain  really  valuable  scientific  material 
for  a  causal  analysis  of  the  jural  order?  It  is  unquestionably 
hopeless. 

And  even  were  it  possible  to  proceed  thus,  we  should  be  far 
from  exhausting  in  this  way  the  data  of  jural  life.  Jural  life,  as  a 
social  province,  is  by  no  means  made  up  of  immediate  expressions 
of  the  individual  jural  sense  only ;  there  are  also  mediate  and  in- 
direct expressions  of  the  same  in  it.  The  positive  laws  of  nations 
with  their  statutes  and  provisions,  have,  it  is  true,  their  first  origin 
in  the  expressions  of  the  jural  sense  of  individuals.  But  after  these 
have  become  positive  laws  they  are  no  longer  the  immediate  ex- 
pressions of  the  individual  jural  sense,  but  the  objective  products 
of  the  jural  sense  of  whole  spheres  of  social  development,  of  count- 
less individuals  with  variously  formed  jural  consciences  —  indi- 
viduals of  existing  generations  as  well  as  individuals  that  have  long 
passed  away. 


§  2.]  ETHNOLOGICAL   JURISPRUDENCE  15 

It  would  be  a  manifestly  precarious  attempt  to  seek  the  expla- 
nation of  these  phenomena  in  the  nature  of  the  human  individual 
itself.  Unlimited  scope  would  be  given  to  caprice  and  imagina- 
tion. 

And  yet,  in  the  face  of  all,  this  method  of  studying  the  Science 
of  Jurisprudence  is  still  greatly  in  vogue,  and  meets  with  unquali- 
fied approval  from  contemporary  students.  They  endow  the 
human  individual  with  certain  instincts,  the  social  instinct  and  the 
instinct  of  self-preservation :  or  they  will  have  it  pursue  different 
ends  according  to  its  constitutional  bent,  happiness,  liberty,  etc., 
and  upon  these  phantasms  they  build  their  structure  as  becomes 
the  kindly  heart  and  academic  culture  of  the  philosopher.  These 
artistic  productions  are  often  charming  reading,  often  teem  with 
clever  conceits,  and  give  us  a  pretty  picture  of  how  blissful  all 
would  be,  were  it  not  so  different  in  the  world.  If  these  works  did 
not  claim  to  be  more  than  light  and  entertaining  reading,  we  might 
joyfully  welcome  them.  But  they  pretend  to  be  more ;  they  as- 
sert that  they  are  scientific  and  would  actually  influence  the  prac- 
tical mechanism  of  the  jural  order.  Herein  is  their  danger.  Eth- 
nological Jurisprudence,  in  my  opinion,  must  stand  aloof  from  all 
attempts  to  define  State  and  Law  on  the  basis  of  individual  psy- 
chology.    And  now"  to  the  discussion  and  proof. 


It  is  not  only  in  the  province  of  Jurisprudence  that  we  find  at- 
tempts to  explain  the  phenomena  of  social  life  on  the  basis  of 
individual  psychology.  This  method  is  common  to  all  the  other 
social  sciences.  It  rests  upon  a  broad  and  fundamental  psycholog- 
ical principle,  which  at  the  present  day  shows  signs  of  instability 
and  will  sooner  or  later  be  completely  overthrown. 

All  human  science  takes  on  a  different  form,  according  to  whether 
we  assume  that  the  nature  of  man  can  be  determined  from  his  ego 
alone,  or  that  the  soul  and  egooi  man  are  not  identical  but  that  man 
is  conscious  of  a  portion  only  of  his  psychical  activity.  In  the 
first  instance,  the  psychology  of  the  individual  is  the  irreversible 
basis  of  human  science ;  in  the  second,  we  have  to  look  about  us 
for  broader  foundations.  Ethnology,  and  likewise  ethnological 
jurisprudence,  is  founded  upon  the  second  view.  It  assumes  that, 
in  the  individual  consciousness,  only  a  small  portion  of  his  psy- 
chical activity  is  manifest  to  the  individual  and  that  the  greater 
part  is  lost  to  his  consciousness.  It  regards  individual  psychology, 
therefore,  as  no  proper  basis  of  science. 


16  INTRODUCTION  [§  2. 

That  which  we  call  our  consciousness  is  in  any  case  but  an  in- 
finitesimally  small  portion  of  the  totality  of  psychic  life  active 
within  us.  It  hovers  like  a  tenuous  and  shimmering  cloud  above  an 
unfathomable  ocean.  All  manner  of  images  rise  from  the  depths 
of  our  soul,  yet  few  assume  such  sharpness  of  contour  as  to  be 
recognised.  By  far  the  greater  portion  of  our  spiritual  life  remains 
unknown  to  us.  By  far  the  greatest  portion  of  the  spiritual  life 
of  which  we  are  conscious,  is  known  to  us  only  as  the  resultant 
product  of  unconscious  psychical  processes,  and  not  as  something 
in  process  of  production.  We  remain  totally  unconscious  of  those 
spiritual  activities  which  touch  most  nearly  the  vital  centre  of  our 
being,  the  activities  which  create  on  the  one  side  an  ego  and  on  the 
other  a  world.  At  the  instant  a  child  first  becomes  conscious  of 
itself,  the  ego  and  the  world  are  already  existent :  their  birth  is 
concomitant  with  the  act  of  consciousness.  The  unconscious 
activities  of  the  soul  have  shaped  them,  until,  appearing  as  ready- 
formed  products,  they  give  rise  to  that  radical  contrariety  by  which 
man  becomes  conscious  of  himself  and  a  world.  We  remain  utterly 
unconscious,  too,  of  those  psychical  workings  which  give  to  the 
world  its  sensible  character  and  to  the  ego  its  spiritual.  Our  world, 
in  every  phase  in  which  it  is  accessible  to  us,  is  virtually  a  product 
of  psychical  activities  acting  unconsciously  within  us.  Light, 
heat,  color,  sound,  taste,  smell,  pressure,  weight,  even  space  and 
time,  do  not  belong  to  the  world  as  such:  on  the  contrary  thej^ 
are  creations  of  mental  activities,  corresponding  to  the  psycho- 
logical activities  of  our  sensory  and  central  organs  and  project 
without  a  world  created  within. 

Rokitansky  ^  expresses  himself  upon  this  subject  as  follows : 
"  We  see  the  world  that  surrounds  us  by  means  of  light ;  but 
it  is  now  known  that  light  does  not  exist  as  such  apart  from  us; 
on  the  contrary  it  is  vibrations  of  ether,  which  we  transpose  into 
light,  and  recognise  as  such,  by  means  of  mechanisms  of  specific 
irritability  located  beyond  the  sensory  organs  proper.  Thus  we 
ourselves  illuminate  space  and  come  to  know  things  therein  through 
their  relation  to  light ;  we  acquire  knowledge  not  only  as  to  their 
surface  and  outlines,  but  also  as  to  their  inner  constitution.  It  is 
likewise  the  vibrations  of  sounding  bodies  of  different  magnitude 
and  velocity,  taken  up  and  communicated  to  us  by  the  air,  that  we 
convert  into  sound  and  tone.  And  so,  too,  the  things  which  we 
perceive  through  impressions  upon  the  other  senses,  are,  apart  from 
our  conception  of  them,  quite  different,  and  undoubtedly  consist 
1  "Der  selbst.  Werth  des  Wissens,"  1869,  p.  6,  et  seq. 


§  2.]  ETHNOLOGICAL  JURISPRUDENCE  17 

of  the  molecular  or  molar  motions  of  matter.  It  must  strike  every 
impartial  person  as  strange  that  we  recognise  as  external  objects 
things  of  which  the  conception  is  really  formed  within  us.  How 
does  this  come?  There  is  undoubtedly  a  subjective  organic 
activity  present  here. 

"  This  much  is  known :  that  the  impelling  power  in  obedience 
to  which  we  project  objects  conceived,  outside  the  subject  con- 
ceiving them,  must  lie  in  the  inward  organisation  of  the  mind ;  that 
the  conception  of  things  in  space  is  a  function  of  the  organs  of  our 
cognitive  faculty  which  even  in  dreams  creates  in  our  imagination 
an  external  world. 

"  The  perceptible  world  about  us  is  essentially  a  creation  of  our 
personality ;  it  is  by  the  functioning  of  inner  organs  that  objects 
appear  as  things  outside  of  us,  as  things  of  definite  quality  and 
form,  of  definite  size  and  greatness.  Further,  when  we  behold  in 
the  genesis  of  things  and  in  their  different  stages  and  mutations  a 
succession  and  a  connexion,  we  say  that  the  succession  takes  place 
in  time  and  that  the  connexion  between  the  changes  is  a  causal  one. 
But  when  we  ask  ourselves  how  we  arrive  at  these  conclusions,  it 
turns  out  that  we  do  so  by  virtue  of  subjective  forms  which  must 
lie  in  our  organisation  and  by  means  of  which  we  are  in  fact  enabled 
to  apprehend  successions  and  connexions." 

Even  the  world  that  remains  after  we  remove  the  mantle  of 
sensible  phenomena,  the  world  of  ether  and  matter  vibrations,  is 
still  not  the  world  proper ;  it  is  the  world  only  as  it  appears  to 
human  cognitive  activity. 

The  psychical  operations,  too,  that  create  our  ego  are  totally 
hidden  from  us. 

And  even  the  greater  part  of  those  psychical  operations  of  which 
we  are  conscious,  are  presented  to  consciousness  as  finished  prod- 
ucts, the  genesis  of  which  took  place  in  unconsciousness.  Ra- 
tiocination alone  is  effected  wholly  in  consciousness.  Feelings  and 
desires  come  to  consciousness  as  results  only,  and  many  judgments 
are  not  logical  judgments,  but  incompleted  ones,  lying,  with  the 
principle  upon  which  they  were  formed,  in  the  province  of  the  un- 
conscious. 

If  all  this  be  correct,  it  is  evident  that  our  consciousness  is  in 
no  wise  fitted  for  the  thorough  comprehension  of  human  nature ; 
for  only  an  insignificant  portion  of  our  spiritual  life  ever  becomes 
immediately  conscious.  What  we  are  able  to  fathom  by  self- 
contemplation  is  soon  exhausted.  Yet  unlimited  is  the  province  of 
knowledge  that  opens  before  us,  if  to  the  inward  observation  of 


18  INTRODUCTION  [§  2. 

self  we  add  outward  observation  by  the  senses  ;  in  other  words,  if, 
from  the  phenomena  of  unconscious  psychic  Hfe  as  expressed  in 
the  outward  world  of  sense,  we  draw  inferences  as  to  the  uncon- 
scious activities  at  work  within  us. 

To  this  end  the  whole  sensible  world  presents  itself.  Our  sen- 
sible world  is  not  the  real  world-in-itself.  It  is  merely  a  world- 
image,  made  by  man,  created  by  human  psychical  activities. 
From  this,  therefore,  we  shall  be  able  to  gather  a  great  part  of  our 
unconscious  psychical  life,  and  thus  come  infinitely  nearer  the 
essence  of  our  being  than  would  be  possible  through  the  introspec- 
tive observation  of  our  own  psychical  activities. 

In  this  way  we  arrive,  not  at  the  psychology  of  the  past,  which 
attempted  to  unfold  the  nature  of  man  from  the  ego,  but  at  a  psy- 
chology which  will  endeavor  to  disclose  the  same  from  the  world- 
image  created  by  man. 


Among  the  phenomena  of  our  sensible  world  which  admit  of 
inferences  as  to  unconscious  psychical  activities,  the  phenomena 
of  social  life  assume  a  prominent  place. 

And  social  life,  though  made  up  of  the  activities  of  individuals, 
supposably  in  possession  of  free  will,  is  also  essentially  instinctive, 
resting  upon  the  more  or  less  unconscious  impulses  of  the  individ- 
ual. Whosoever  has  had  to  do  with  the  more  intricate  problems 
of  ethnology,  will  entertain  no  doubt  whatever  of  this  fact. 

Turn  where  we  will  in  the  domain  of  social  life,  we  shall  every- 
where see  fixed  social  laws  at  work,  everywhere  meet  with  a  ten- 
dency of  development,  which  leading  through  centuries  and  cen- 
turies, makes  towards  some  definite  end,  and  of  whose  aims  the 
individuals  comprehended  in  the  movement  have  no  idea.  Con- 
template the  history  of  the  growth  of  language,  .the  development 
of  forms  of  divinity,  of  art,  of  legal  institutions,  even  of  fashions 
and  utensils  ;  they  come,  grow,  and  go,  like  things  of  life.  There 
is  but  little  here  that  is  the  product  of  individual  reflexion  ;  almost 
everything  is  of  organic  growth.  The  individual  follows  blind 
impulses  and  coercive  social  conditions ;  the  individual  most  fre- 
quently intends  the  very  opposite  of  what  he  produces  by  his  work, 
and  all  that  he  does  accomplish,  unless  fitting  in  with  the  course  of 
organic  development,  will  soon  come  to  naught. 

That  the  individual  in  social  life  acts  for  the  most  part  instinc- 
tively, we  may  ascertain  by  self-observation  and  by  the  observa- 
tion of  other  individuals.     A  man,  in  speaking  to  another,  employs 


§  2.]  ETHNOLOGICAL   JURISPRLT)ENCE  19 

the  words  he  needs  quite  instinctively;  they  come  to  him,  as  a 
rule,  without  further  reflexion.  He  need  not  know  anything  of 
the  grammar  of  the  language  he  speaks,  and  yet  many  employ  the 
language  with  the  greatest  ease.  A  man  who  is  confronted  with 
the  question  whether  he  is  acting  advantageously  or  not,  whether 
he  is  committing  an  act  of  justice  or  injustice,  generally  decides 
from  pure  instinct,  occasionally  from  feeling,  but  seldom  through 
clear  reasoning,  and  then  always  liable  to  the  danger  of  mistake. 
A  poem,  a  melody,  a  picture,  a  statue,  arises  before  the  mind's 
eye  of  an  artist :  something  comes  to  him.  Not  until  something 
comes  to  him,  can  he  elaborate  it  further  by  thought.  Creations 
that  are  not  unconsciously  born  in  the  artist  are  not  works  of  art, 
although  every  artifice  of  aesthetic  manipulation  have  been  em- 
ployed. Every  original  and  powerful  idea  in  science  is  born  of 
unconsciousness  like  a  stroke  of  lightning. 

We  need  but  glance  at  every-day  life  to  become  convinced  of 
how  instinctive  in  its  workings  the  whole  mechanism  of  human  ex- 
istence is.  Take  the  habits  and  customs  of  ordinary  social  life. 
When  do  we  ever  hear  of  reasons  for  acting  in  this  manner  or  in 
that  ?  We  act  so  because  things  are  not  otherwise  than  they  are, 
because  we  must,  because  others  do  so.  We  all  know  how  impos- 
sible it  is  to  convince  a  person  who  can  advance  no  reasons  for  his 
conduct,  that  his  way  of  thinking  is  wrong.  If  there  were  a  pos- 
sible prospect  of  being  able  to  do  this  in  the  case  of  a  man,  it  would 
certainly  fail  with  a  woman,  whose  springs  of  life  are  pre-eminently 
more  instinctive  than  man's.  In  fact,  a  man  who  does  not  act  and 
live  instinctively  is  ridiculed  and  despised  :  he  is  no  longer  capable 
of  inspiration  and  enthusiasm  for  any  cause. 

The  deposits,  therefore,  of  the  unconscious  workings  of  the 
human  mind  in  the  customs  and  conceptions  of  nations,  are  a 
source  of  incalculable  importance  to  the  understanding  of  the 
human  soul ;  and  the  history  of  social  activity  furnishes  an  in- 
finitely more  copious  material  to  this  end  than  could  be  obtained 
by  introspection  and  observation  of  the  psychical  life  of  a  single 
human  individual.  An  important  part  of  our  psychical  life,  which 
for  the  most  part  does  not  directly  appear  in  consciousness,  can 
thus  be  gathered  from  the  customs  and  conceptions  of  the  peoples 
of  the  earth. 

Our  statements  as  to  consciousness  in  general  are  likewise  true 
of  the  jural  sense.  The  jural  sense  b}-  no  means  exhausts  the 
totality  of  psychical  processes  which  constitute  the  jural  life  of  a 
man.     More  properly,  the  majority  of  these  processes  come  into 


20  INTRODUCTION  [§  2. 

the  jural  consciousness  as  results,  as  feelings  and  desires,  or  as 
instinctive  jural  judgments ;  while  the  genesis  of  these  psychical 
formations  are  hidden  in  unconsciousness.  But  in  the  jural  in- 
stitutions and  conceptions  of  nations  a  great  deal  of  jural  life  comes 
to  light  that  remains  unknown  to  the  individual,  and  so  it  is  pos- 
sible to  penetrate  much  farther  by  this  method  into  the  cognition  of 
the  human  mind  in  its  jural  aspects  than  was  possible  by  the  ob- 
servation of  one's  own  jural  sense  or  by  observing  the  expressions 
of  the  jural  sense  of  single  individuals. 

But  apart  from  this  broad  psychological  standpoint,  the  very 
nature  of  Law  itself  indicates  that  the  individuo-psychological 
method  can  lead  to  nothing,  and  that  only  the  socio-psychological 
method  can  produce  satisfactory  results.  It  will  appear  on  closer 
observation  that  the  individual  jural  sense  is  not  the  creator  of  the 
jural  order,  but  on  the  contrary,  that  the  individual  jural  sense  is  a 
product  of  law  as  a  sphere  of  social  life.  Only  in  so  far  as  the  jural 
sense  is  consciousness  -per  se  are  we  concerned  with  a  biological 
basis ;  in  so  far,  however,  as  it  is  a  jural  consciousness,  the  foun- 
dation is  sociological.  The  human  consciousness  has  a  physical 
basis  in  the  central  organs  of  the  body,  but  we  should  search  in 
vain  in  the  human  body  for  an  organ  that  is  the  seat  of  the  moral 
or  jural  sense.  A  human  being,  reared  in  a  state  of  perfect  isola- 
tion, would  think  because  he  possessed  a  brain  and  had  to  use  it 
in  the  struggle  with  nature.  But  we  should  find  no  trace  of  a 
moral  sense  or  a  jural  sense  in  such  a  person.  The}"  are  both  the 
exclusive  product  of  1  ife  in  human  society.  They  first  arise  through 
adaptation  to  the  social  relations  in  which  men  live,  and  not  until 
this  adaptation  is  perfected  does  human  consciousness  acquire, 
among  innumerable  other  notions,  conceptions  of  right  and  wrong, 
of  rights  and  obligations. 

The  jural  order,  therefore,  is  not  to  be  explained  from  the  nature 
of  the  human  individual,  but  from  the  nature  of  the  social  bodies 
in  which  it  has  been  evolved.  And  it  is  only  from  this  source  that 
the  individual  jural  sense  also  becomes  intelligible. 

Although  the  jural  sense  acts  purely  from  instinct  within  us,  it 
is  nevertheless  the  creation  of  social  and  not  of  individual  factors. 
This  will  appear  from  the  fact  that  it  acts  in  opposition  to  individ- 
ual inclination.  How  are  we  to  find  one  biological  basis  for  the 
two  psychical  forces  that  come  into  conflict  when  the  individual 
becomes  possessed  of  an  inclination  to  commit  a  crime  and  his 
jural  sense  restrains  him  from  it?  And  if  there  be  no  biological 
basis,  then  the  psychological  theory  that  a  person  can  control  his 


§  2.]  ETHNOLOGICAL   JURISPRUDENCE  21 

sensuous  inclinations  by  the  innate  rational  faculty  rests  upon 
imagination.  In  reality  the  controlling  element  here  is  not  a 
biological  or  an  individuo-psychological  factor,  it  is  a  socio- 
psychological  one. 

The  most  telling  proof  that  the  individual  jural  sense  is  not  a 
biological  but  a  sociological  product  is  found  in  the  circumstance 
that,  apart  from  the  changes  it  suffers  as  consciousness  proper 
(through  age,  insanity,  etc.),  its  content  is  determined  by  the  char- 
acter of  the  social  community  in  which  the  individual  lives  or  has 
grown  up.  Were  this  not  the  case  the  jural  sense  of  Frenchmen, 
Germans,  Russians,  and  Chinese,  who  had  attained  the  same  de- 
gree of  intellectual  culture,  would  be  one  and  the  same.  But  this 
is  obviously  not  the  case.  Identity  of  jural  sense  means  identity 
of  social  organisation. 


The  individuo-psychological  standpoint,  accordingly,  is  inade- 
quate for  the  explanation  of  the  facts  of  jural  life  and  we  must  ex- 
pect really  valuable  scientific  results  only  from  a  socio-psychological 
analysis  of  jural  phenomena. 

The  socio-psychological  method  proceeds,  in  its  investigation 
of  the  causes  of  jural  life,  not  from  the  human  individual,  but  from 
the  forms  which  Law  assumes  in  society,  from  jural  customs,  jural 
conceptions,  and  jural  institutions  as  they  are  met  with  in  the  life 
of  nations  themselves.  All  these  forms  arose  originally  from  ex- 
pressions of  the  individual  jural  sense,  and  these  expressions  are 
in  their  turn  founded  upon  social  instincts  developed  by  life  in 
human  society.  By  frequent  repetition  and  the  elimination  of 
concrete  notions,  these  expressions  gradually  lose  their  indi^■idual 
character.  They  become  expressions  of  the  corporate  jural  sense 
of  a  concrete  sphere  of  social  development.  In  this  way  a  nation 
acquires  a  set  of  jural  customs  and  jural  conceptions,  which  regu- 
late its  acts  and  judgments,  and  whose  conservation  is  entrusted  to 
the  government  of  the  social  sphere  in  which  they  were  evoh'ed. 
In  this  so-called  positive  law,  the  organic  law  of  a  nation  assumes 
an  objective  form.  It  is  a  precipitate,  in  a  social  shape,  of  the 
jural  sense,  just  as  religious  rites,  forms  of  divinity,  and  doctrinal 
faith  are  the  precipitates  of  the  religious  sense,  or  human  language 
of  human  thought.  In  the  positive  law  of  a  definite  epoch  lies, 
essentially,  the  normal  jural  sense  of  the  totality  of  indi\iduals 
embraced  within  a  single  sphere  of  social  development,  as  founded 
upon  the  jural  order  transmitted  from  previous  generations. 


22  INTRODUCTION  [§  2. 

These  positive  laws  constitute  the  combined  data  of  the  socio- 
psychological  investigations  of  jural  life ;  and  they  are  full  of 
promise.  In  the  evolution  of  positive  laws  the  creative  national 
genius  has  instinctively  accomplished  a  scientific  work,  such  as 
could  only  be  obtained  by  thoroughly  analysing  the  utterances  of 
the  jural  sense  of  all  the  individuals  that  now  live  or  ever  have 
lived  within  the  social  sphere  governed  by  the  positive  law  in 
question. 

The  study  of  the  individual  jural  sense  is  thus  in  reality  unnec- 
essary, and  the  science  of  jurisprudence  may  begin  at  once  with 
the  analysis  of  positive  laws. 

The  question  now  arises  as  to  what  method  of  conducting  the 
analysis  of  jural  life,  as  a  field  of  social  activity,  will  be  most  pro- 
ductive of  results. 

It  is  obvious  that  in  the  first  place  the  jural  customs  and  jural 
hotions  of  all  the  nations  of  the  earth  must  be  carefully  collated 
and  accurately  described.  For  only  the  aggregate  of  all  the 
expressions  of  the  jural  sense  of  mankind  can  afford  material 
warranting  inferences  as  to  the  nature  of  the  human  jural  sense  in 
general. 

And  since  the  mass  of  jural  customs  and  jural  notions  neces- 
sary to  this  task  lies  scattered  among  very  many  different  peoples, 
it  follows  that  the  natural  classification  of  the  material  will  be  ac- 
cording to  the  nationalities  in  which  the  notions  in  question  prevail. 

Such  a  collection  of  the  jural  customs  and  notions  of  all  man- 
kind arranged  according  to  nations,  would  afford  a  higlily  useful 
basis  for  juridical  research.  It  would  be  possible  to  carry  out, 
within  this  framework,  a  uniform  and  systematic  arrangement  of 
the  material.  There  are  numerous  customs  and  conceptions  which 
repeat  themselves  among  different  peoples,  and  these  would  serve 
as  the  leading  divisions  of  the  systematised  arrangement  we  have 
in  mind.  The  following,  for  instance,  might  properly  be  regarded 
as  divisions  :  the  relations  of  kinship  as  derived  from  mother-right, 
father-right,  and  parental  rights  generally,  with  the  stages  of  tran- 
sition between  the  same,  the  subsequent  development  of  the  bonds 
of  consanguinity  (clan-fraternity,  milk-tie,  foster-tie,  etc.),  endog- 
amy and  exogamy,  wedlock  in  its  various  phases  (restrained  and 
unrestrained  promiscuity,  wedlock  by  groups,  polyandrous,  polyg- 
ynous  and  monogamous  wedlock,  leviratical  marriages),  the  cap- 
ture of  wives,  the  acquisition  of  the  bride  by  service,  the  purchase 
of  brides,  betrothal-rights,  obligation  of  abstinence  before  and 
after  marriage,  suitors,  disqualifications  to  wedlock,  forms  of  mar- 


§  2.]  ETHNOLOGICAL   JURISPELTDENCE  23 

rying,  divorce,  second  marriage,  mourning-time,  the  status  of 
women  and  children,  age  of  arming,  age  of  majority,  child-bed  of 
the  husband,  the  status  of  the  old  and  the  sick,  forbiddance  of  inter- 
course between  persons  near  of  kin,  guardianship,  federal  and  mo- 
narchic forms  of  organisation,  community  of  house  and  farms,  sys- 
tems of  joint  responsibility  and  solidarity,  blood-feud,  rights  of 
refuge,  ordeals,  forms  of  oaths,  et  cetera.  This  list  might  be  con- 
tinued for  pages.  In  this  material  are  to  be  found  legal  concep- 
tions and  customs  of  the  most  widely  different  nations  of  the  earth 
which  partly  agree  and  partly  vary.  We  could  arrange  all  customs 
and  conceptions  under  these  headings,  and  the  classification  so 
reached  would  be  a  preparatory  work  of  great  value  for  the  causal 
analysis  of  legal  customs  and  conceptions  generally.  It  would  then 
appear  in  how  far  given  legal  customs  and  conceptions  varied 
among  themselves  and  among  different  peoples. 

One  foundation  for  such  a  causal  analysis  is  afforded  by  the 
historical  connexion  between  the  legal  customs  and  conceptions  of 
different  periods  within  the  same  social  organisation.  But  this 
analysis  is  only  possible  where  traditions  are  at  hand  relating  to 
corresponding  legal  customs  and  conceptions  taken  from  the  differ- 
ent periods  of  the  same  people's  development.  As  a  rule  this  is 
only  the  case  with  peoples  having  a  history.  With  peoples  having 
no  history  these  traditions  are  wanting,  unless  perchance  observa- 
tions relating  to  their  law  be  made  during  different  epochs  by  trav- 
ellers from  civilised  nations. 

The  historical  method,  therefore,  in  so  far  as  it  presents  the 
history  of  the  development  of  a  given  legal  custom  or  conception 
in  a  given  society,  is  restricted  to  provinces  comparatively  limited. 
So  far,  we  only  know  of  a  history  of  Roman  and  Germanic  law 
with  the  beginnings  of  the  history  of  Slavonic,  Celtic,  Indian,  INIo- 
saic,  and  Islamitic  law.  The  history  of  all  the  other  systems  of  the 
earth  has  not  been  treated,  or  at  least  what  has  been  accomplished 
is  confined  to  the  beginnings.  Here  and  there  historical  treatment 
would  be  possible.  But  with  the  majority  of  the  peoples  of  the 
earth  material  for  such  a  treatment  is  wanting  altogether,  and  will, 
in  all  probability,  never  be  accessible. 

The  question  arises  now  whether  a  really  causal  anah'sis  of  legal 
customs  and  conceptions  is  still  everywhere  possible.  The  onlj^ 
aid  at  the  disposal  of  science  here  is,  as  with  every  such  analysis, 
the  method  of  comparison.  But  this  is  possible  only  when  there 
is  an  external  similarity  between  legal  customs  and  conceptions. 
The  use  of  a  chronological  connexion  is  here  altogether  out  of  the 


24  INTRODUCTION  [§  2. 

question.  Can  such  a  comparison  yield  scientific  results  of  any 
value  whatever,  or  are  we  here  at  the  end  of  our  science  ?  That  is 
the  question,  the  answer  to  which  will  determine  whether  Ethno- 
logical Jurisprudence  is  a  science  at  all,  or  whether  it  is  a  will-o'- 
the-wisp  the  pursuit  of  which  is  to  be  given  up  as  soon  as  possible. 

The  question  cannot  be  answered  a  j^riori:  it  depends  entirely 
upon  our  successfulness  in  arriving  at  definite  results.  If  we  are 
successful,  the  method  is  warranted ;  if  not,  the  attempt  goes  for 
naught.  The  scientific  possibility  of  a  purely  comparative  method 
depends  upon  facts,  the  existence  or  non-existence  of  which  can 
only  be  determined  by  the  application  of  the  method  itself.  The 
question  is  whether  in  the  development  of  human  law  definite  legal 
customs  and  conceptions  exist  and  regularly  occur  even  among  un- 
related peoples,  or  whether  the  law  of  every  people,  at  least  of 
every  kindred  group  of  peoples,  is  an  isolated  product  standing  in 
no  relation  whatever  to  the  law  of  other  peoples.  If  there  be  rules 
of  legal  conduct  which  recur  everywhere  on  the  globe  and  which 
pass  through  a  stated  course  of  development,  the  method  by  com- 
parison is  applicable :  to  explain  a  given  legal  custom  of  one  na- 
tion we  may  avail  ourselves  of  the  corresponding  legal  customs  of 
another.  If  such  be  not  the  case,  a  purely  comparative  method  is 
a  scientific  chimera. 

For  instance,  if  a  table  of  the  legal  customs  of  all  the  nations 
of  the  earth  were  to  present  such  a  picture  as  the  languages  of  all 
the  nations  of  the  earth  (e.g.  in  Franz  Miiller's  "  Grundriss  der 
Sprachwissenschaft"),  a  purely  comparative  method  such  as  I  have 
employed  in  my  works  upon  ethnological  jurisprudence,  would  be 
out  of  the  question.  A  comparison  of  non-cognate  tongues  is  im- 
possible, for  these  are  isolated  formations.  It  may  be  that  certain 
results  for  the  general  evolution  of  human  thought  could  be  ob- 
tained only  from  a  conspectus  of  all  the  languages  of  the  earth; 
but  generally  languages  are  isolated  products  of  certain  ethnic 
groups.  With  other  creations  of  social  life  this  is  not  the  case. 
The  evolution  of  the  religious  sense  affords  phenomena  of  manifold 
similarities,  which  extend  far  beyond  the  boundaries  of  philological 
races ;  and  so  the  jural  life  of  mankind  affords  a  succession  of  phe- 
nomena which  are  not  the  especial  creations  of  certain  peoples  or 
of  a  certain  congeries  of  peoples,  but  which  recur  on  the  contrary 
in  wide  domains,  among  unrelated  nations,  and  extend  over  such 
broad  fields  that  they  may  be  regarded  as  the  common  and  univer- 
sal property  of  the  whole  race. 

When  such  analogous  legal  customs  and  conceptions  are  dis- 


§2.]  ETHNOLOGICAL   JURISPRLDENCE  25 

covered  among  unrelated  peoples  of  the  earth,  it  then  becomes  a 
question  whether  they  owe  their  origin  to  analogous  causes ;  for 
phenomena  of  jural  life  which  are  outwardly  alike  may  rest  upon 
quite  dissimilar  causes.  Yet  we  may  attempt  to  explain  one  by  the 
other,  and  whether  this  is  possible,  we  shall  soon  discover.  When 
we  meet  with  the  same  or  a  similar  legal  custom  among  many  peo- 
ples, we  usuall}'  find  a  sphere  of  ideas  which  readily  explains  it. 
Whilst  certain  legal  customs  and  conceptions  occur  only  within  ex- 
tremely limited  domains,  and  do  not  lend  themselves  at  all  to  the 
comparative  method,  on  the  other  hand  we  meet  with  such  as  re- 
cur among  all  possible  peoples  and  races  in  infinite  variations,  and 
the  divergences  are  such  that  we  are  often  unavoidably  led  to  as- 
sume that  these  isolated  customs  represent  different  stages  in  the 
development  of  a  jural  institution  which  in  its  fundamental  fea- 
tures is  everywhere  uniform.  This  can  be  shown  only  by  illus- 
trations, and  it  remains  for  me  to  explain  what  I  mean  by  a  definite 
example. 

Thus  under  the  rubric  of  leviratical  marriages  we  may  include 
a  group  of  phenomena  regarding  which  we  possess  accounts  from 
the  most  diverse  peoples  of  the  earth,  varying  greatly  in  compass 
and  credibility.     Such  accounts  are  for  instance  the  following : 

1.  North  American  Indians 

Among  the  Kolushes  the  brother  or  sister's  son  receives  the 
widow  of  the  deceased  in  marriage.  Among  the  Ojibways  and  the 
Omahas  the  widow  became  the  wife  of  her  brother-in-law  after  the 
mourning  period  was  over,  and  the  latter  had  to  care  for  the  chil- 
dren of  his  deceased  brother. 

2.  Aztec  and   Toltec  Nations 

In  the  States  of  Anahuac  a  man  was  only  allowed  to  marry 
the  widow  of  his  deceased  brother  when  children  were  still  living 
whose  education  had  to  be  cared  for. 

3.  Soidh  American  Indians 

Among  the  Arawaks  a  second  marriage  is  not  left  to  the  will 
of  the  widow,  for  the  nearest  relative  of  the  deceased  husband  has 
the  right  to  marry  her,  and  the  latter  may  thereby  often  become 
the  second  or  third  wife  unless  sold  to  a  third  party.  If  she  marry 
any  one  without  the  consent  of  the  lawful  heir,  the  deadliest  feuds 


26  INTRODUCTION  [§  2. 

may  result.  Among  the  Calcliaquis  in  the  interior  of  Brazil,  the 
brother  marries  the  widow  of  his  brother,  to  beget  descendants  for 
the  deceased.  According  to  Von  IVIartius,  it  is  a  custom  rigor- 
ously practised  among  all  Brazilian  Indians,  that  upon  the  death 
of  a  husband  the  eldest  brother,  or  in  case  there  be  none,  the  near- 
est male  relative  of  the  deceased  marries  the  widow,  and  the  wid- 
ow's brother  marries  her  daughter;  which  is  the  case  with  the 
Mundrucus,  Uainumas,  Juris,  INIauhes,  Passes,  and  Coerunas. 

4.  Oceanic  Peoples 

In  Australia  when  the  husband  or  affianced  dies,  his  brother 
on  his  mother's  side  inherits  his  wife  and  children ;  the  widow  re- 
pairs to  him  with  her  children  after  the  interval  of  three  days.  In 
Western  Australia  the  brother  of  the  deceased  has  a  right  to  the 
widow,  and,  if  he  choose,  may  take  her  for  himself.  On  the  Flin- 
ders Islands,  near  Australia,  if  the  husband  die  his  brother  marries 
his  wife. 

Among  the  Polynesians  the  brother  of  the  deceased  is  re- 
garded as  the  husband  of  the  widow  and  the  father  of  the  de- 
ceased's children. 

5.  Semitic  arid  Cognate  Peoples 

Among  the  Bedouins,  if  a  young  husband  leave  a  widow,  his 
brother  as  a  rule  offers  to  marry  her ;  but  it  is  not  in  his  power  to 
force  her  to  marry  him.  With  the  Beni  Amer,  if  the  brothers  of  a 
deceased  husband  do  not  wish  to  marry  his  widow,  she  can,  after 
the  expiration  of  the  mourning  period,  marry  at  her  own  will,  and 
she  may  not  be  forced  into  marriage  by  the  brother  of  her  deceased 
husband.  With  the  Barea  and  Kunama,  if  a  man  die,  his  widow 
is  married  without  further  ado  by  his  brother  of  the  same  mother, 
or  ultimately  by  the  son  of  the  deceased's  man's  sister.  With  sev- 
eral Berber  tribes  of  the  Atlas  region,  the  male  relative  who  after 
the  death  of  her  first  spouse  first  throws  his  shawl  (Haik)  over  the 
widow,  becomes  her  husband  and  has  to  care  for  her  children  and 
manage  her  property.  Among  the  Bogos,  when  a  married  man 
dies,  his  sons  by  a  previous  marriage,  his  brothers  or  next  of  kin, 
succeed  to  his  wife,  that  is,  marry  her,  without  further  consultation 
with  her  father.  Among  the  Hebrews  leviratical  marriages  occur 
in  the  following  form :  If  brethren  live  together  and  one  of  them 
die  and  have  no  child,  the  wife  of  the  deceased  shall  not  marry 


§  2.]  ETHNOLOGICAL   JURISPRLrDENCE  27 

without  unto  a  stranger :  her  husband's  brother  shall  go  in  unto 
her  and  take  her  to  him  to  wife.  And  it  shall  be  that  the  first  born 
which  she  beareth  shall  succeed  in  the  name  of  his  brother  which 
is  dead,  that  his  name  shall  be  not  put  out  of  Israel.  With  the 
Galla,  the  brother  must  marry  the  widow  of  his  deceased  brother. 
With  the  Somali,  the  widow  may  marry  again  only  with  one  of  her 
husband's  nearest  relatives,  who  has  to  pay  her  half  of  her  first 
dowry ;  if  the  latter  die  too,  his  wife  is  married  to  one  of  the  same 
family  for  a  compensation  of  one-fourth  of  the  first  sum.  If  the 
wife  die,  the  husband  has  the  right  to  demand  in  marriage  an  un- 
married sister  of  his  dead  wife  for  one-half  of  the  marriage  dowry. 

6.  Negro  and  Congo  Peoples 

In  the  interior  of  western  equatorial  Africa,  the  nephew  mar- 
ries the  relics  of  his  maternal  uncle,  and  with  the  Bakalai  the  son 
marries  the  widows  of  his  father,  with  the  exception  of  his  own 
mother.  With  the  Bechuana  the  son  succeeds  to  all  his  father's 
wives,  and  if  an  older  brother  die,  the  younger  brother  comes  by 
his  wives. 

7.  Indo-Germanic  Peoples 

With  the  Afghans  the  brother  is  bound  to  marry  the  widow  of 
a  deceased  brother  if  she  wish  it.  In  the  laws  of  ]Manu,  leviratical 
marriage  occurs  only  in  case  a  virgin  widow  be  left.  In  the  latter 
case,  the  same  custom  prevails  among  the  Ideyars  in  South  India, 
among  the  Jat  families  in  the  Punjab,  and  with  some  of  the  Rajput 
classes  of  Central  India.  It  occurred  in  the  old  German  law,  that 
the  heir  to  whom  the  guardianship  of  the  widow  came  with  the  in- 
heritance, particularly  the  brother  of  the  deceased  or  indeed  her 
own  stepson,  took  the  widow  to  himself  as  though  part  of  the  in- 
heritance. 

******* 

From  such  a  collection  of  ethnological  facts,  embracing  the 
whole  earth  and  including  the  customs  of  nations  in  no  ways  re- 
lated, no  one,  unless  starting  from  a  prejudiced  point  of  view, 
could  entertain  the  supposition  that  it  were  possible  for  such 
strange  phenomena,  agreeing  in  so  many  particulars,  to  rest  every- 
where upon  causes  different  in  character  and  place.  There  can  be 
no  doubt  that  broader  foundations  to  these  exist ;  they  must  repose 
upon  universal  forms  of  social  organisation,  —  forms  which  in  indi- 
vidual instances  find  diversified  expression  onh*. 


28  INTRODUCTION  [§  2. 

These  universal  forms  of  organisation  are  not  to  be  discovered 
directly  from  the  facts  themselves :  to  determine  them  a  person 
must  possess  a  knowledge  of  the  general  jural  status  of  the  nations 
in  question,  and  this  knowledge  can  be  obtained  only  from  ac- 
counts of  the  legal  customs  of  the  said  peoples.  With  the  aid  of 
information  thus  obtained,  no  doubt  can  be  entertained  that  all  the 
above  mentioned  customs  belong  to  a  form  of  organisation  which 
extends  over  the  whole  earth,  and  which  is  exhibited  exclusively 
among  peoples  living  in  a  state  of  nature  —  viz.,  the  clan.  Thence 
arise  characteristic  conceptions  of  law  which  are  repeated  in  all 
the  customs  above  mentioned.  It  is  a  universal  principle  of  the 
clan-system  that  women  are  not  independent  subjects  of  jural  rela- 
tions, that  they  are,  so  to  speak,  pieces  of  property  belonging  to 
the  clan.  They  stand  under  the  guardianship  of  the  clan,  which 
disposes  of  them  at  will,  but  which  likewise  provides  for  their 
maintenance.  These  rights  and  duties  of  guardianship  are  lodged 
by  preference  in  the  hands  of  a  definite  person,  the  head  of  the 
family,  and  after  the  latter 's  decease  fall  to  the  person  who  suc- 
ceeds him.  And  so  the  women  of  the  family  chief  pass  to  the  new 
family  chief  by  way  of  inheritance,  and  the  same  rights  and  duties 
that  the  former  chief  possessed,  arise  in  the  person  of  his  suc- 
cessor. With  the  gradual  disintegration  of  the  clan-system  women 
acquire  more  and  more  recognised  legal  status,  while  the  right  and 
duty  of  guardianship  becomes  more  and  more  invalidated. 

This  is  the  fundamental  principle  upon  which  all  the  above- 
mentioned  customs  rest.  If  the  guardian  of  a  woman  die,  the  lat- 
ter passes  by  inheritance  to  the  person  to  whom  the  guardianship 
now  falls.  According  to  the  strict  interpretation  of  tribal  institu- 
tions, there  lies  in  the  idea  of  guardianship  the  right  of  absolute 
disposal  on  the  one  hand,  and  on  the  other  the  obligation  to  pro- 
vide for  the  woman  in  question. 

A  great  number  of  other  conceptions  of  clan-law  might  be  ad- 
duced in  explanation  of  the  customs  mentioned. 

1 .  First,  two  systems  of  relationship  exist  in  the  clan :  the 
system  of  mother-right,  agreeably  to  which  relationship  is  deter- 
mined solely  through  the  female  line,  and  the  system  of  father- 
right,  agreeably  to  which  relationship  is  determined  solely  through 
the  male  line.  Descent  and  guardianship  conform  to  these  sys- 
tems. The  third  system  that  occurs,  the  system  of  parent-right 
generall}^  whereby  the  relationship  is  determined  through  the  male 
as  well  as  the  female  line,  first  appears  after  the  dissolution  of  the 
clan-svstem. 


§  2.]  ETHNOLOGICAL   JLTRISPRLTDENCE  29 

It  appears  from  the  instances  cited,  that  leviratical  marriages 
and  inheritance  of  women  occur  as  well  under  the  system  of 
mother-right  as  under  that  of  father-right.  Under  mother-right, 
women  are  transferred  among  the  North  American  Indians,  Austra- 
lians, Barea,  Kunama,  and  among  the  tribes  of  equatorial  Africa, 
according  to  the  systems  respectively  prevailing  among  these  peo- 
ples. Under  father-right,  women  are  transferred  among  the  peo- 
ples of  the  ]MaIay  peninsula,  the  Himalaya  and  Caucasus  districts, 
among  the  INIongolic-Tartaric,  most  of  the  Semitic,  most  of  the 
Negro,  Congo,  and  Indo-Germanic  peoples,  according  to  the  s^-s- 
tems  respectively  prevailing  among  them.  Here  and  there  the  ac- 
counts fail  in  establishing  whether  inheritance  takes  place  accord- 
ing to  mother-right  or  father-right,  and  since  both  systems  often 
exist  side  by  side,  these  instances  demand  more  detailed  investiga- 
tion. With  the  Brazilian  tribes  mentioned  a  complication  of  father 
and  mother-right  is  found.  The  widow  is  married  b}'  the  nearest 
relative  according  to  the  patriarchal  system,  while  the  daughter  is 
married  by  her  mother's  brother  on  the  maternal  side  according  to 
the  matriarchal  system. 

With  the  Dyaks,  who  live  according  to  parent-right,  levirat- 
ical marriages  are  in  a  state  of  total  decadence.  The  widow  may 
be  freed  from  marriage  with  the  nearest  relative  of  her  husband  by 
surrendering  her  property  to  the  family  of  such  relative. 

2.  In  strict  conformity  to  clan-law,  the  nearest  male-relation  of 
the  deceased  husband  is  empowered  and  obligated  to  take  the 
widow  in  marriage,  while  the  consent  of  the  widow  is  not  asked. 
After  the  dissolution  of  the  clan  the  heir  generally  continues  to  en- 
joy the  right  of  marrying  the  widow,  although  no  longer  obliged  to 
do  so ;  on  the  other  hand,  he  is  still  obliged  to  provide  for  her, 
although  he  may  become  absolved  from  this  duty  by  giving  her  in 
marriage  to  another  person  —  a  procedure  empowered  by  his 
guardian-right  of  disposition.  The  widow  acquires  the  privilege 
of  no  longer  being  forced  to  marry  without  her  consent  the  person 
that  inherits  her ;  but  on  the  other  hand  she  is  not  allowed  to  enter 
into  another  marriage  without  his  approval.  If  a  third  person 
should  marry  her  without  the  consent  of  the  heir,  he  would  be 
guilty  of  an  infraction  of  the  heir's  guardian  rights,  and  according 
to  clan-law  this  leads  to  blood-feud. 

Here  belong  the  customs  of  the  Arawaks,  the  Australians,  the 
Malayans,  and  most  of  the  others  mentioned. 

3.  All  male  relatives  are  entitled  to  such  inheritance  who,  ac- 
cording to  the  system  of  kinship  prevailing,  are  next  of  kin. 


30  INTRODUCTION  [§  2. 

Thus  the  sister's  son  or  mother's  brother,  according  to  mother- 
right,  and  according  to  father-right  the  son  or  the  brother  on  the 
father's  side,  inherit  the  wives  as  well  as  the  property  and  enter 
into  marriage  with  the  former  by  inheritance.  The  brothers  of  the 
deceased  figure  in  almost  all  the  customs  mentioned.  The  sister's 
son  figures  as  heir,  for  example,  among  the  Kolushes,  the  Barea, 
and  Kunamas,  in  equatorial  Africa ;  the  son,  among  the  Tunguses, 
the  Bakalai,  the  Bechuana,  the  Kafhrs.  The  only  exception  to  the 
inheritance  of  the  son  is  his  natural  mother,  who  falls  to  a  brother 
of  the  father. 

In  accordance  with  the  notion  that  the  right  of  guardianship 
resides  in  the  whole  clan,  all  members  thereof  are  in  a  mediate 
way  supposed  to  be  entitled  to  the  inheritance,  as  is  the  case 
among  the  Alfurs. 

4.  A  legal  custom  prevailing  among  all  clan-organisations  is 
the  purchase  of  the  bride.  The  family  of  the  female,  or  its  clan- 
head,  sells  the  future  wife  for  a  certain  sum  to  the  family  of  the  fu- 
ture husband,  or  to  the  latter  in  person.  By  this  sale  the  family  of 
the  female  either  renounces  all  claims  to  the  wife,  or  certain  de- 
fined rights  still  remain  witl^  them.  When  the  wife  is  transferred 
by  marriage  to  the  family  of  her  husband,  she  remains  there  even 
after  his  death.  The  family  of  her  husband  has  to  dispose  of  and 
care  for  her :  she  stands  under  the  guardianship  of  her  husband's 
family.  Without  the  consent  of  the  latter  she  is  not  allowed  to  en- 
ter into  marriage  with  a  third  person,  and  in  case  of  such  a  mar- 
riage her  deceased  husband's  family  receives  the  amount  paid  for 
her  as  bride. 

If  a  kinsman  of  the  deceased  husband  marry  the  widow,  no  bridal 
price  is  paid  the  family  of  the  female,  provided  all  rights  have 
passed  to  the  family  of  the  husband  through  the  original  bridal 
purchase.     Otherwise,  a  smaller  payment  is  made  at  remarriage. 

If  the  guardian-rights  of  the  female's  family  are  not  totally 
abolished  by  the  bridal  purchase,  the  relations  between  the  family 
of  the  female  and  the  family  of  the  husband  may  take  various 
shapes. 

Thus  among  the  Benget-Igorrots  the  wife  belongs  to  the  fam- 
ily of  the  deceased  husband,  and  among  the  Papuas  of  Geelvink 
Bay  and  on  the  Aru  islands  the  family  of  the  husband  gets  the 
bridal  sum  for  the  widow  who  enters  into  an  alien  marriage.  No 
bridal  sum  is  paid  among  the  Alfures  of  Burn  and  on  the  Aru 
islands  in  case  of  leviratical  marriages.  The  law  of  the  Somali  is 
also  to  be  compared  here. 


§  2.]  ETHNOLOGICAL   JURISPRLDEXCE  31 

The  rights  of  the  wife's  family  still  appear  in  the  custom  of 
pre-emption,  which  is  mentioned  among  the  Usbegs,  in  the  law  of 
Timor,  where  the  next  of  kin  to  the  deceased  can  absolve  himself 
from  the  obligation  of  providing  for  the  widow  by  the  payment  of  a 
certain  sum  to  her  family. 

5.  To  the  clan-guardianship  already  noticed,  belongs  the  cus- 
tom of  the  Karo-Karo  according  to  which,  if  there  be  no  near  rela- 
tive of  the  deceased  to  take  the  widow,  the  family  chief  assigns  the 
latter  a  spouse  from  the  jNIarga  of  the  deceased  husband.  And  sim- 
ilarly among  the  Circassians,  the  widow  and  her  children  pass  to 
another  member  of  the  clan.  The  provision  here  is  quite  charac- 
teristic that  the  clan  has  no  obligations  in  this  line  if  the  widow  be 
too  old  for  marriage.  With  the  Bechuana  also  the  whole  kindred 
determines  which  among  the  kinsmen  has  to  marry  the  widow. 

6.  The  provisions  of  the  Batak-law  of  Angola  and  Sipirong 
are  to  be  taken  into  consideration  here  according  to  which  the 
widow  of  the  elder  brother  always  falls  to  the  younger  brother, 
while  the  marriage  of  the  elder  brother  with  the  widow  of  the 
younger  is  regarded  as  incest.  On  the  other  hand,  with  the  Alfures 
of  Buru  the  eldest  brother  of  the  deceased  inherits  the  widow  of 
the  deceased,  whereas  a  brother  younger  than  the  deceased  hus- 
band may  not  marr\'  the  latter's  widow.  This  last  provision  ap- 
pears to  owe  its  existence  to  entirely  specific  causes.  With  the 
IMalagasy  the  brother  next  succeeding  marries  the  widow.  With 
the  Khatties  the  widow  of  the  elder  brother  falls  to  the  younger, 
while  the  widow  of  the  younger  brother  may  do  as  she  pleases.  It 
thus  appears  that  also  in  this  instance  the  elder  brother  can  make 
no  claim  to  the  widow  of  the  younger.  With  the  Chassaks  the 
women  pass  from  one  brother  to  another  in  the  line  of  succession, 
apparently  thus :  the  widow  of  the  elder  brother,  always  to  the 
next  younger.  With  the  Bechuana  also  the  younger  brother  suc- 
ceeds to  the  widow  of  the  elder.  And  so  it  appears  to  be  the  rule 
in  general,  that  the  next  younger  brother  is  in  e\'ery  case  author- 
ised and  obligated  to  contract  leviratical  marriages. 

7.  A  peculiar  group  is  formed  by  the  leviratical  marriages  of 
the  Calchaquis  in  the  interior  of  Brazil,  of  the  IMalagasy ,  and  of 
the  Hebrews.  In  these  instances  the  object  of  leviratical  marriage 
is  to  perpetuate  the  family  of  the  deceased  —  an  object  which  is 
aimed  at  by  many  other  features  of  the  clan-system.  Children  be- 
gotten in  leviratical  marriage  are  considered  the  children  of  the  de- 
ceased husband.  The  law  of  the  Malagasy  recognises  all  children 
as  such  ;  that  of  the  Hebrews  onlv  the  first  son.     AVith  the  Ossetes 


32  INTRODUCTION  [§  2. 

the  same  thing  reappears  as  with  the  INIalagasy :  only  in  this  in- 
stance the  widow's  children  which  are  subsequently  born  out  of 
wedlock,  also  pass  for  the  children  of  the  deceased  husband,  just 
as  among  the  Kaffirs  natural  children  of  widows  pass  as  the  chil- 
dren of  the  deceased  husband  and  consequently  fall  to  the  latter's 
heirs. 

8.  To  the  decadence  of  the  clan-system  belong  those  customs 
according  to  which  the  obligation  to  marry  the  widow  is  only  a 
duty  of  propriety,  and  according  to  which  the  woman  must  consent 
to  the  marriage ;  in  the  first  place,  however,  the  provision  of  the 
law  of  Anahuac  whereby  a  leviratical  marriage  is  permissible  only 
when  the  education  of  the  deceased  brother's  children  has  to  be 
provided  for. 

9.  To  an  entirely  different  group  belongs  the  custom  of  Po- 
napi,  according  to  which,  upon  the  death  of  a  wife,  the  widower 
marries  her  sister.  This  custom  is  also  found  among  the  North 
American  Indians,  the  Knistineaux  and  the  Selish,  and  in  many 
other  districts  besides.  It  is  found  among  the  Somali  together 
with  the  customs  above  noticed.  There  may  be  a  close  relation 
between  this  and  the  legal  principle  so  widely  diffused  that  the 
wdfe's  family  stands  security  to  the  man  in  bridal  purchase  that  he 
shall  keep  his  wife,  and  that  if  she  die,  a  new  one  shall  be  substi- 
tuted. Yet  the  matter  might  be  considered  from  other  points  of 
view,  and  more  thorough  investigation  is  demanded  for  an  ade- 
quate explanation  of  this  phenomenon. 

Numerous  groups  of  facts  similar  to  those  just  discussed  may 
be  discovered  in  the  jural  life  of  the  peoples  of  the  earth,  and  this 
being  the  case,  it  will  no  longer  be  possible  to  deny  that  the  purely 
comparative  method  is  allowable  in  the  province  of  jurisprudence; 
and  this  holds  true,  whatever  individual  opinions  may  be  as  to 
the  value  of  the  facts  reported  and  the  inferences  drawn  from 
them. 

That  the  inferences  are  unsafe,  is  at  once  evident.  This  comes 
from  the  fact  that  sufficient  material  is  not  yet  at  hand  and  has  not 
yet  been  properly  assorted.  But  it  is  just  as  perfectly  evident  that 
inferences  have  to  be  drawn  and  will  have  to  be  drawn  still.  The 
material  would  never  be  procured,  if  it  could  not  be  shown  from 
such  inferences  that  a  collection  of  facts  in  the  direction  indi- 
cated would  lead  to  solid  scientific  results.  Furthermore  it  is  only 
through  inferences  of  this  sort  that  points  of  view  can  be  won  from 
which  further  work  may  be  directed  with  intelligence.  For  all  ma- 
terial is  certainly  not  of  equal  value  to  science,  and  the  tendency 


§  2.]  ETHNOLOGICAL   JURISPRUDENCE  33 

to  delve  into  irrelevant  details  is  widely  prevalent  in  learned  cir- 
cles, and  especially  in  Germany.  On  the  other  hand,  one  must  be 
on  one's  guard  against  pronouncing  a  discovered  fact  irrelevant 
because  we  do  not  happen  to  know  at  the  time  of  any  analogous 
phenomenon.  It  is  impossible  to  prescribe  a  detailed  method  of 
procedure  for  the  field  of  ethnological  jurisprudence.  Such  a 
method  must  first  result  from  the  very  material  to  which  it  is 
applied. 

At  present  we  can  offer  but  a  few  general  points  for  considera- 
tion : 

1.  Although  the  collection  of  material  must  take  place  with 
separate  races  and  nations  (and  the  most  detailed  observations  are 
here  of  the  highest  value),  nevertheless  in  the  causal  analysis  of 
the  jural  customs  of  a  single  nation,  it  is  highly  expedient  always  to 
adduce  the  corresponding  jural  facts  of  cognate  as  well  as  of  non- 
cognate  peoples  :  for  we  may  thus  avoid  such  false  conclusions  as 
easily  arise  from  insufficient  material  in  treating  of  a  definite  cus- 
tom of  a  given  people.  This  is  but  the  extension  of  a  view  which 
has  already  asserted  itself  in  the  investigation  of  the  history  of 
law. 

An  exposition  of  what  is  stipulated  in  the  law  of  a  single  Euro- 
pean municipality  would  be  much  more  exhaustive  if  expounded 
from  other  sources  beside  its  own  and  if  the  laws  of  kindred  mu- 
nicipalities were  adduced  in  explanation.  In  wider  fields,  the  re- 
cent study  of  Indian  Law  has  aided  considerably  in  perfecting  the 
expositions  of  Germanic,  Roman,  Grecian,  and  Celtic  customary 
law.  If  legal  customs  exist  which  are  more  universal  and  which 
prevail  throughout  extended  ethnic  fields,  it  is  certain  that  an  un- 
derstanding of  these  is  of  proportionately  more  value  if  the  expla- 
nation of  such  a  custom  in  a  single  nation  is  under  consideration. 
We  do  not  wish  to  say  by  this  that  no  attempt  should  be  made  to 
expound  the  legal  custom  first  from  the  more  limited  sphere  in 
which  it  appears.  On  the  contrary,  this  endeavor  should  be  aided 
as  much  as  possible,  and  historical  investigation  in  particular 
should  be  pushed  as  far  as  practicable  in  the  separate  provinces. 
But  in  any  single  province  of  law,  historical  investigation  will 
always  reach  a  point  where  original  material  no  longer  warrants 
conclusions  of  demonstrable  certainty.  Vagrant  hypotheses  neces- 
sarily arise,  where  the  admission  of  facts  from  more  extended  re- 
gions might  lead  to  safe  conclusions.  It  is  quite  obvious  that  in 
considering  the  laws  of  peoples  having  no  history,  a  comprehensi.e 
understanding  of  the  laws  of  all  other  peoples  of  the  earth  possesses 


34  INTRODUCTION  [§  2. 

incomparably  higher  value  than  in  the  case  of  peoples  that  do  pos- 
sess a  history ;  indeed  it  is  indispensable  in  the  first  instance  if 
false  conclusions  are  to  be  avoided.  It  must  therefore  be  recom- 
mended to  those  who  intend  to  labor  scientifically  in  the  field  of 
ethnological  jurisprudence,  first  to  acquire  at  least  a  tolerable 
knowledge  of  every  existing  legal  system  before  entering  upon 
more  limited  fields  of  research :  otherwise  they  will  always  be  liable 
to  partial  judgments.  Even  for  the  mere  collection  of  legal  cus- 
toms, this  will  be  expedient,  for  an  investigator  with  European 
opinions  of  law  might  very  easily  receive  a  wrong  impression  from 
a  legal  custom  discovered  among  a  people  living  in  a  state  of  na- 
ture. The  causal  analysis  will  be  the  more  correct,  in  proportion 
as  the  investigator's  knowledge  of  all  existing  systems  of  law  is 
the  more  comprehensive. 

2.  The  history  of  law  deals  with  historical  data  in  their  chron- 
ological succession.  Ethnology  in  so  far  as  it  treats  of  peoples 
having  no  history  does  not  recognise  such  a  connexion ;  it  has  no 
chronology.  Ethnology  takes  no  cognizance  of  decades  or  cen- 
turies :  it  has  to  do  with  periods  and  strata  onl}',  somewhat  like 
geology.  In  any  epoch  you  choose  ethnology  meets  with  all  man- 
ner of  legal  customs,  from  the  lowest  and  crudest  to  those  of  the 
highest  development,  existing  near  each  other  and  among  all  na- 
tions of  the  earth.  The  materials  whereon  it  can  found  its  conclu- 
sions are  like  or  analogous  data,  and  such  data  among  the  different 
peoples  of  the  earth  are  separated  from  one  another  not  by  decades 
but  by  hundreds  and  thousands  of  j'ears.  Legal  customs  which  are 
practised  to-day  among  one  people,  belong  to  the  most  primitive 
periods  of  another.  The  chronology  of  ethnological  jurisprudence 
is  not  a  computation  of  years  from  a  point  of  time  arbitrarily 
adopted.  It  is  the  graduated  scale  of  development  which  any 
characteristic  legal  custom  or  conception  has  passed  through 
among  the  different  people  with  whom  it  is  found. 

This  idea  can  be  transferred  to  historic  nations  also  and  with 
important  results.  Every  living  historic  nation  still  rests  in  its  un- 
dermost strata  upon  the  primitive  society  whence  it  has  arisen ,  and 
upon  this  foundation  strata  upon  strata  of  culture  and  civilisation 
are  piled.  All  these  strata  still  lie  one  above  the  other  in  the  posi- 
tive law  of  a  people  of  any  period.  Even  in  the  most  recent  of 
modern  codifications  there  is  an  abundance  of  heirlooms  from  prim- 
itive times,  and  we  may  trace  in  the  current  law  of  to-day  the  his- 
tory of  its  development  as  easily  as  we  can  trace  in  the  structure 
of  the  human  body  the  history  of  the  human  race.     This  point,  too. 


§  2.]  ETHNOLOGICAL   JURISPRUDENCE  35 

may  often  become  of  great  importance  in  explaining  any  single 
legal  custom ;  for  it  is  often  impossible  to  explain  such  customs 
from  the  times  in  which  they  occur,  it  being  necessary  to  recur  to 
periods  long  since  past. 

3.  Hitherto,  the  science  of  jurisprudence  has  believed  that  it 
possessed  the  most  valuable  material  for  research  in  the  laws  of 
nations  which  had  reached  the  highest  plane  of  civilisation,  and 
that  it  could  dispense  altogether  with  the  study  of  civil  life  among 
the  ruder  and  more  uncivilised  peoples.  It  is  exactly  upon  this 
point  that  ethnological  jurisprudence  must  lay  the  greatest  empha- 
sis, for  only  in  the  laws  of  uncivilised  peoples  are  the  germinal  con- 
ditions of  law  to  be  discovered,  and  for  universal  history  of  the 
development  of  law  a  knowledge  of  the  latter  conditions  is  indis- 
pensable. As  the  science  of  physiology  is  based  upon  the  physiol- 
ogy of  the  cell,  so  will  the  future  science  of  jurisprudence  be 
founded  upon  the  germinal  element  of  civil  society'  —  the  primitive 
gens.  And  this  primitive  gens  as  an  elementary  form  is  to  be  found 
at  present  only  among  purely  aboriginal  peoples. 

4.  Social  customs  and  conceptions,  as  we  find  them  among  the 
nations  of  the  earth,  are  regarded  by  the  ethnologist  as  organic 
products.  The  fact  of  their  existence  can  no  more  be  subjected  to 
criticism  than  the  fact  of  the  existence  of  individual  plant  or  ani- 
mal species,  than  the  fact  of  the  existence  of  a  solar  system  or  of 
the  universe  at  large.  They  are  regarded  as  natural  growths,  and 
merely  the  causes  that  have  produced  them  are  made  the  subject 
of  ethnological  research.  In  the  same  manner  the  legal  customs 
and  conceptions  of  the  various  nations  of  the  earth,  are  regarded 
by  ethnological  jurisprudence  as  irreversible  facts.  They  too  are 
not  to  be  subjected  to  sesthetical  or  ethical  criticism  from  the  indi- 
vidual standpoint.  They  are  to  be  investigated  objectively  in  ref- 
erence to  their  causes,  just  as  we  examine  a  plant  or  an  animal 
in  search  of  the  laws  of  its  growth  and  the  conditions  of  its  life. 

In  ethnology,  therefore,  and  particularly  in  ethnological  juris- 
prudence, the  question  never  arises  as  to  whether  a  thing  be  good 
or  bad,  right  or  wrong,  true  or  untrue,  beautiful  or  ugly.  The  sole 
question  is  whether  a  certain  custom  or  conception  really  exists  in 
the  life  of  the  nations  ;  and  if  it  exist,  why  ?  and  if  not,  why  ?  No 
importance  can  be  attached  here  to  the  judgments  of  individuals 
regarding  such  a  custom  or  conception  ;  and  if  ethnology  and  eth- 
nological jurisprudence  are  to  acquire  a  strictly  scientific  character, 
this  purely  objective  standpoint  is  to  be  rigorously  adhered  to. 

Individual  estimation  is  an  extremely  inconstant  factor,  and 


36  INTRODUCTION  [§  3,  1. 

its  recognition  would  utterly  invalidate  a  strict  and  scientific  treat- 
ment of  ethnological  subjects.  An  exhibition  of  indignation  on  the 
part  of  an  ethnologist  at  relatively  immoral  practices,  adds  nothing 
to  the  solution  of  ethnological  problems.  It  matters  not  whether 
a  people  live  without  the  institution  of  marriage,  practice  cannibal- 
ism, offer  human  sacrifices,  impale  its  wrong-doers  or  burn  its 
witches  and  sorcerers ;  for  the  sentimental  disapproval  of  such 
practices,  in  investigation,  tends  to  disarrange  that  equipoise  of 
judgment  which  is  requisite  to  determining  the  causal  relation  ex- 
isting between  ethnological  phenomena.  The  ethnologist  is  called 
upon  to  seek  this  causal  relation  with  the  cold  indifference  of  the 
anatomist.  A  person  who  speaks  of  senseless  customs  and  sense- 
less institutions,  is  not  fitted  to  engage  in  ethnological  research. 


The  above  are  the  principal  points  of  view  which  at  present 
admit  of  establishment  for  ethnological  jurisprudence.  Others 
may  suggest  themselves  as  the  science  is  further  developed. 


Section  3 
THE   ORIGIN   OF   LEGAL   INSTITUTIONS 

1.    The  Imitation  Theory^ 

Of  all  phases  of  social  life  the  law  is  that  one  in  which  philo- 
sophical speculation  has  in  our  day  been  the  least  exercised.  It 
has  been  given  full  scope  in  comparative  philology  and  mythology 
in  politics,  in  morals,  in  esthetics,  in  political  economy ;  but  the 
Codes  have  inspired  its  fear.  It  has  left  the  law  to  the  jurists,  — 
the  mine  to  the  miners.  Has  it  recoiled,  I  know  not  why,  from 
the  special  studies  which  the  development  of  that  new  vein  would 
demand  ?  Or  is  there  between  the  juridical  and  the  philosophic 
spirit  a  certain  incompatibility  of  nature? 

Be  that  as  it  may,  this  surrender  of  the  legal  field  to  mere  day- 

1  [This  passage  is  from  the  Introduction  and  Chapter  VII  of  "Les 
transformations  du  Droit."  by  Gabriel  Tarde  (Paris,  1st  ed.  1893, 
7th  ed.,  1912 ;  the  7th  edition  is  a  reprint  of  the  first,  with  the  addition 
of  a  Preface  taking  account  of  the  criticisms  of  M.  Girard,  printed  post, 
as  §  2).  INI.  Tarde,  eminent  as  magistrate,  psychologist,  and  sociologist, 
died  in  1909 ;  an  account  of  his  work  is  given  in  the  editorial  preface  to 
the  translation  of  his  "  Penal  Philosophy "  (Alodern  Criminal  Science 
Series,  1913).  ISIme.  Tarde  has  consented  to  the  translation;  from  ad- 
vance copy  of  which,  by  Shcpord  Barclay,  of  St.  Louis,  the  parts  presented 
here  were  selected  and  edited.] 


§  3,   1.]  THE    ORIGIN    OF    LEGAL   INSTITUTIONS  37 

laborers  (known  as  commentators)  and  to  men  of  business  has 
had  unfortunate  results.  The  science  of  Law  itself  has  remained 
isolated  and  sterile,  dominated  by  its  own  domestic  routine. 
And  the  other  sciences,  too,  have  suffered,  that  of  economics 
especially,  which  has  forgot  its  parentage  and  its  rights  of  joint 
inheritance  and  has  unconsciously  overpassed  its  natural  bound- 
aries. The  socialistic  reaction,  arising  so  enthusiastically  in  the 
latter  half  of  the  1800  s,  against  the  old-school  economics  was  in 
part  due  to  the  latter's  unwitting  encroachments ;  for  there  was 
no  worthy  and  powerful  theory  of  law  to  impose  a  rival  and  fra- 
ternal check  upon  the  ambitious  theories  of  wealth  put  forth  by 
economics. 

I.    The  Theory  of  a  Uniform  Ewlution;  its  Fallacies 

But  for  some  years  past  we  have  been  witnessing  the  rise  of  a 
new  influence  in  criminal  law,  —  the  influence  of  Darwinism, 
of  evolution,  of  anthropology  ;  and  this  influence,  rapidly  increas- 
ing and  spreading,  has  begun  to  gain  a  foothold  within  the  civil 
field  of  law.^  Already,  indeed,  the  learned  researches  of  the 
archaeologists  of  our  legal  system  had  prepared  the  ground.  Until 
they  appeared,  the  Roman  law  was  the  only  one  studied  histori- 
cally with  complete  thoroughness.  For  the  theoretical  jurist, 
it  had  always  been  what  the  Scriptures  were  to  the.  historian  of 
old,  —  a  unique  and  sacred  phenomenon,  totally  incomparable 
with  anything  else,  and  hence,  for  lack  of  standards  of  comparison, 
absolutely  beyond  the  sphere  of  explanation.  But  when  the 
Egyptologists  and  the  Assyriologists  of  to-day  revealed  to  us  the 
Egyptian  law,  the  Assyrian  law ;  when  similar  researches  into  the 
relics  of  the  Indo-European  and  Semitic  families,  of  the  Germans, 
Slavs,  Persians,  Celts,  as  well  as  of  the  ^Moslems,  of  the  Hebrews, 
etc.,  furnished  for  us,  little  by  little,  a  vast  juridical  museum 
(of  which  ]\I.  Dareste,-  among  us,  might  be  called  the  conservator), 
then  the  traditional  orthodox  legal  science  began  to  feel  a  sudden 
expansion   and    rejuvenation. 

Nevertheless,  it  would  be  misleading  to  suppose,  because  one 
had  noted  many  and  striking  resemblances  between  different 
languages  and  founded  a  comparative  philology,  that  he  had 

^  It  is  worth  noting  that  in  all  epochs  the  reconstruction  of  a  legal 
system  —  the  grafting  of  new  ideas  on  the  juristic  tree  —  has  begun 
with  the  criminal  law,  the  earliest  branch  to  put  forth  new  shoots,  and 
always ^the  one  most  prominent  for  our  attention. 

2  "Etudes  d'histoire  du  Droit,"  by  M.  Dareste,  of  the  Institute  (Lerose 
et  Forcel.  1889). 


75IS7 


38  INTRODUCTION  [§  3,  1. 

made  a  theory  of  language.  It  would  be  a  like  error  to  persuade 
oneself  that  it  is  sufficient  for  a  lawyer-philosopher  to  have  dis- 
covered some  resemblances  between  certain  developments  in 
the  law,  more  or  less  independent  the  one  of  the  other,  and  thus 
created  a  comparative  jurisprudence.  Those  resemblances  are 
only  the  materials  of  the  problem  to  solve ;  the  point  is  first  to 
limit  them,  to  replace  them  in  their  natural  positions,  often  dis- 
turbed by  excessive  ingenuity,  and  to  interpret  them  by  tracing 
back  their  causes. 

These  are  of  two  kinds,  organic  or  social.  The  first  are  found 
in  the  inherent  and  hereditary  wants  of  human  nature,  which 
continue  the  same  despite  diversity  of  races  and  of  tim.es;  the 
second,  in  wants  derived  and  acquired  by  imitative  contact  between 
man  and  man.  It  is  needful  to  join  these  two  incomplete  acts  to 
understand  the  historical  transformations  of  the  Law,  as  well 
as  those  of  language,  of  religion,  of  institutions,  of  industries, 
of  manners.  But,  to  join  them,  one  must  by  all  means  not  con- 
fuse them,  but  rather  distinguish  them,  with  all  the  nicety  pos- 
sible, and  give  to  each  of  them  its  proper  part. 

Not  but  that  admirable  philosophic  works  on  the  law  have 
appeared,  here  and  there,  exceptionally.  Suffice  it  to  cite  the 
leading  effort  of  Sir  Henry  JNIaine,  on  "Ancient  Law,"  and  the 
remarkable  studies  which  followed  it.  But  we  find  that  the  school 
of  evolution,  although  rapidly  advancing,  although  quick  to  in- 
spire flights  beyond  its  cradle  in  Darwinism,  has  shown  itself 
most  backward  in  respect  of  the  Law.  IMaine  is  not  committed 
to  it  except  by  a  sort  of  collateral  relationship,  quite  distant ;  and 
it  was  the  historical  school,  very  French  in  its  origin,  that  antici- 
pated the  advent  of  either  Darwin  or  Spencer  into  the  world. 
It  is  true  that  in  penal  law  there  has  been  dabbling  with  the  doc- 
trine of  evolution  for  several  years.  But  yet  there  is  much  more 
of  "criminal  anthropology"  than  of  penal  evolution  in  questidn 
therein.  As  to  the  civil  law,  it  has  remained  outside  the  scope  of 
the  movement  until  a  much  later  period.  Note,  nevertheless, 
that  we  already  hear  announced  the  terms  "juridical  anthropol- 
ogy" and  "juridical  evolution" ;  but  more  like  the  names  which 
old  geographers  used  to  give  in  advance  to  partly  unexplored 
regions  of  Africa  or  America.  In  reality,  without  ignoring  the 
merit  of  tiie  first  explorers  of  those  unknown  lands,  we  may  be 
allowed  to  believe  that  they  have  left  quite  a  crop  to  be  gleaned 
after  them.  Further  is  it  manifest  that  many  explorers  strive  to 
launch  out  in  their  footsteps. 


§3,  1.]  THE    ORIGIN    OF    LEGAL   IXSTITUTIOXS  39 

The  historians  and  archaeologists  of  the  law  had  long  since  pre- 
pared the  roads  for  them.  But  history  and  archaeology  appear, 
unhappily,  to  be  subjects  the  least  in  mind  of  the  disciples  of  Herbert 
Spencer,  who,  applying  here  a  general  formula  of  evolution,  the 
magic  key  of  the  universe,  accept  for  explanation  its  application 
pure  and  simple. 

It  is  true  that  the  new  evolutionists  of  the  Law  are,  in  general, 
also  anthropologists,^  and  we  may  anticipate  from  this  junction 
of  anthropological  researches  with  the  grand  constructive  systems 
of  Darwin  and  Spencer  the  most  fortunate  result.  We  may  ven- 
ture to  believe  that  a  minute  comprehension,  in  detail,  of  the 
organs  and  needs  of  the  individual,  as  furnished  by  the  one,  would 
complement  or  temper  the  inordinate  tendency  to  generalization 
suggested  by  the  other ;  that  the  one  would  allow  us  for  the  first 
time  to  introduce  to  the  law  of  the  future  its  true  ideal,  the  pur- 
suit of  a  Law  truly  natural  conforming  to  the  natural  demands 
of  the  human  organism,  while  the  other  would  unfold  the  necessity 
of  the  ^■icissitudes  encountered  by  the  Law  of  the  past  in  the  course 
of  its  history.  But  truth  obliges  me  to  confess  that,  until  how 
at  least,  this  confluence  of  the  two  great  schools  has  not  been  very 
productive  in  stable  ideas,  nor  do  I  yet  see  arising,  among  the 
many  small  towers  of  Babel,  hastily  constructed,  in  the  law,  any 
Eiffel  tower  to  dim  in  its  shadow  the  prior  works  of  INIaine  and  of 
Fustel  de  Coulanges.  The  "Ancient  City"  of  the  latter,  despite 
even  its  comments  on  the  origin  of  the  feudal  system,  unhappily 
marred  by  the  spirit  of  system  and  of  useless  polemics,  stands  as 
one  of  those  works  which  indirectly  has  best  penetrated  the  very 
life  of  the  Law  and  the  secrets  of  its  changes.^  As  to  the  "Ancient 
Law"  and  other  works  of  the  great  English  law-philosopher, 
although  wholly  devoid  themselves  of  ambitious  pretensions,  they 
w^ould  seem  to  have  extracted  from  our  subject  all  the  philosophic 
sweet    that  it  contains.     But,  nevertheless,  that  is  an  illusion; 

1  For  instance,  M.  Letoitrneau,  author  of  the  "Evohition  juridique" 
(1891)  ancL.  M.  Giuseppe  d'Aguanno,  whose  book  entited  "La  genese 
e  I'evoluzione  del  diritto  civile  secondo  le  resultanze  delle  science  authro- 
pologiche  e  storico-soeiali "  (Turin,  1890),  will  have  considerable  claim 
on  our  attention.  We  refer  again,  in  another  line  of  thought,  to  the 
work  of  Ihering  on  the  "Struggle  for  Law."  It  is  high  time  that  the 
famous  "struggle  for  life"  had  a  word  to  saj'  in  the  law. 

2  Excessive  and  exclusive  study  of  the  wTitten  word  led  that  great 
historian,  at  the  close  of  his  career  to  become  biased,  so  as  to  be  unjust 
in  respect  of  the  discoveries  of  others.  It  is  curious,  for  instance,  to  see 
him  reproaching  M.  de  Laveleye,  ]M.  Glasson.  etc.,  for  their  use  of  the 
comparative  method,  which  was  the  very  feature  giving  value  to  his 
chief  work,  the  "Ancient  Cit3\" 


40  INTRODUCTION  [§  3,   1. 

and    there  remain  yet,  assuredly,  many  other  discoveries  to  be 
made  in  this  field  so  little  or  so  poorly  explored.  .  .  . 

Much  clearer  ostensibly  than  the  idea  of  a  "legal  anthropology" 
is  that  of  "legal  evolution."  Nevertheless,  it  also  has  great  need 
of  being  defined.  If  it  does  nothing  more  than  to  substitute  for 
the  study  of  the  Roman  law  that  of  the  Aztec  law,  of  the  Peruvian 
law,  of  the  Fuegian  law,  of  the  Australian  law,  of  the  law  of  the 
bronze  age  or  of  the  stone  age  (rough  or  smooth),  of  all  the  bar- 
barian or  savage  laws  whatsoever,  to  get  at  the  sources  of  law,  the 
result  would  only  bring  a  certain  amount  of  easy  learning  to  the 
aid  of  a  large  measure  of  imagination.  And  this  latter  will  always 
command  approval  of  a  special  audience,  if  it  has  that  "  trite  form 
of  originality"  Avhich  consists  in  being  at  one  time  slow  and  con- 
fident, deductive  and  ingenious  —  adapted  to  conform  at  the 
same  time,  by  its  scientific  hypotheses,  to  the  beaten  track  of 
opinion  and  to  the  taste  for  novelty.  Here,  as  to  some  extent 
generally  in  sociology,  we  have  greatly  imposed  upon  the  savages ; 
since  Spencer,  who  officially  inaugurated  the  exploitation  of  that 
mine  of  base  metal,  there  are  current  a  small  number  of  stories, 
always  the  same,  ascribed  to  several  tribes,  American,  African 
or  Oceanic,  which  have  made  the  rounds  of  the  sociological  press 
for  a  long  time,  under  diverse  heads.  Without  a  shadow  of  proof 
(unless  it  be  such  as  gives  but  a  surface  indication),  one  is 
asked  to  give  credence  to  the  idea  a  priori  that  the  primitive  social 
state,  the  supposed  starting  point  of  Progress,  is  the  same  among 
all  savages.  It  is,  however,  impossible  to  close  our  eyes  to  the 
profound  dissimilarities  which  mark  real  savages,  even  the  lowest ; 
their  word-roots,  the  grammatical  structure  of  their  languages; 
their  ceremonies  and  their  beliefs,  their  germs  of  government 
despotic  or  paternal,  their  manners  in  peace  or  in  war,  gentle  or 
fierce,  honest  or  dishonest,  their  musical  melodies,  their  efforts 
at  art,  differ,  out  and  out.  But  the  scholars  are  not  embarrassed 
by  such  small  things :  the  savages  who  are  different,  are  so,  they 
say,  because  they  have  raised  themselves  more  or  less  in  the  scale 
of  savagery ;  even  their  differences  are  instructive  from  the  point 
of  view  of  an  original  identity,  of  which  they  measure  the  degree 
of  departure ;  that  does  not  contradict  it.  As  to  savages  which 
have  resemblances,  they  concede  at  once  that  those  are  entirely 
spontaneous ;  they  do  not  in  general  take  into  account  the  great 
probability  of  association  which  was  bound  to  occur,  either  be- 
tween them  or  between  their  ancestors,  in  the  long  night  of  their 
history,  or  perhaps  before  it ;  nor  do  they  think  of  asking  if,  at  that 


§  3,  1.]  THE    ORIGIN    OF    LEGAL   INSTITUTIONS  41 

time,  much  more  naturally  than  by  any  supposed  formula  of  singu- 
lar and  inevitable  evolution,  may  not  be  explained  an  important 
part  of  those  resemblances. 

Unfortunately,  this  theory  is  strained.  If,  by  evolution,  we 
are  expected  to  understand  a  regulated  series  of  phases,  of  changes, 
equally  inevitable  and  regularly  repeated  as  those  of  insects, 
despite  purely  accidental  and  supposedly  insignificant  variations, 
is  it  not  necessary,  first  of  all,  that  the  initial  phase  should  be 
regarded  as  everywhere  the  same  ?  The  misfortune,  for  the  trans- 
formistic  theory,  is  that  having  taken  its  birth  among  naturalists, 
not  sociologists  or  physicians,  it  is  accustomed  to  consider  as 
the  only  possible  type  of  development  the  single  sort,  of  develop- 
ment (notable  for  its  routine  features)  shown  by  organical  beings. 
It  persuades  itself  too  readily  that  evolution  means  not  only  the 
production  of  successive  phases  brought  about  in  obedience  to 
laws  of  mechanics  and  of  logic,  but  further  reproduction  in  mul- 
tiple examples  of  predetermined  phases,  by  analogy  to  the  suc- 
cessive ages  of  an  individual  animal  or  vegetable.^ 

The  idea  does  not  occur  to  them  that  this  law  of  the  ages,  thus 
conceived  on  the  model  of  those  exceptional  beings,  could  not 
well  be  applicable,  in  its  entirety,  to  the  solar  systems  or  to  the 
transformations  of  society ;  that  the  growth  of  a  language,  of  a 
religion,  of  a  body  of  laws,  of  an  art,  though  it  may  conform  as 
well  to  a  universal  law  as  the  growth  of  a  seed  or  of  a  quadruped, 
may  yet  otherwise  be  entirely  original  and  unique  in  itself.  It 
allows  itself  too  readily  to  think  and  to  assert  that,  because  every 
living  being  is  or  appears  to  be  -  impelled  unto  death  by  an 
internal  impulse,  there  must  be  also,  for  every  astronomical  system, 
although  it  may  have  reached  its  phase  of  stable  equilibrium, 
and  equally  for  every  language,  for  every  religion,  for  every  law, 
although  it  has  attained  to  a  state  of  relative  perfection  and  of 
settled  vitality,  an  internal  necessity  of  death.  Now,  that  sooner 
or  later  it  ought  probably  to  encounter  from  without  some  destruc- 
tive shock,  in  which  would  be  swept  away  language,  religion,  legal 
system  (the  most  stable  until  then),  nothing  is  easier  to  concede; 

^  One  is  too  apt  to  confound  the  connection,  truly  forcible,  between 
cause  and  effect,  of  the  conditions  with  the  conditioned,  with  the  con- 
nection, much  more  loose  and  fluctuating,  of  phase  to  phase,  in  any  evolu- 
tion whatsoever. 

2  According  to  Dr.  Wcit^sman  ("Essais  sur  I'Heredite,"  1892)  living 
monocellular  beings  are  immortal ;  they  disintegrate  themselves,  but 
where  is  the  corpse?  Death  would  be  only  a  "practical  process"  (in- 
vention) of  life,  but  a  fairly  recent  one.  ]VI.  Ddbaeuf  also  has  very  curious 
views  thereon,  and  most  profound  (in  "La  matiere  brute  et  la  matiere 
vivante"). 


/ 


42  INTRODUCTION  [§  3,   1. 

thus  have  perished  the  antique  civiUzations  of  Asia  which  long 
endured  without  any  mishap  from  war;  thus,  perhaps,  after  all 
will  perish  creeds  attacked  by  science ;  thus  ancient  China,  per- 
haps, by  contact  with  Europeans.  But  that  violent  death,  the 
interruption  of  an  immortality  possible  and  normal,  is  a  very  dif- 
ferent thing  from  the  natural  death  which  nothing  living  escapes 
within  a  time  limit  approximately  marked.^ 

Before  generalizing  into  a  paramount  law  these  last  phenomena 
and  many  other  apparent  or  real  characteristics  of  life,  it  would 
be  well  to  ponder  them  a  little.  The  model  idea  of  development, 
instead  of  being  borrowed  from  natural  life,  could  it  not  as  well 
be  expected  from  astronomy  or  from  comparative  philology  or 
mythology?  Are  the  laws  of  mechanics  and  the  laws  of  logic, 
the  one  reflected  in  the  other,  dominated  by  those  of  vegetation 
and  of  animality?  And  is  not  the  notion  of  development,  as  it 
is  suggested  to  us  by  the  celestial  mechanism,  as  being  essentially 
the  result  of  an  established  and  variable  balance,  or  such  even  as 
is  suggested  to  us  by  the  logic  of  individuality  or  of  society  as 
being  the  result  of  some  harmonious  system,  indefinitely  durable, 
of  thoughts  and  wills  operating  without  opposition,  in  good  accord 
among  themselves,  —  is  not  that  notion  superior  in  definiteness, 
in  clearness,  in  explicative  value,  to  the  idea  of  that  insensate  and 
fatal  march  toward  death  which  our  natural  life  suggests? 

We  shall  attempt  to  outline  or  to  indicate  the  principal  features 
of  the  evolution  of  the  Law,  considered  as  a  high  and  complex 
process  of  the  logic  of  society ;  but  at  the  outset,  we  have  to  show 
the  insufficiency  of  social  evolutionism  such  as  it  is  generally 
interpreted.  A  victim  to  its  own  fixed  theory,  it  falls  fatally 
into  two  fallacies  :  1°  It  exaggerates  the  number  and  significance 
of  the  resemblances  which  strike  the  mind,  at  first  sight,  when  we 
compare  the  bodies  of  supposed  foreign  laws,  one  with  another, 
as  well  as  the  languages,  religions,  armies,  nations,  regarded  in 
their  political,  industrial,  artistic  and  moral  aspects;  2°  It  holds 
all  those  resemblances,  true  or  false,  as  spontaneous,  without 
according  or  attempting  to  accord  its  legitimate  part  to  the  prin- 
ciple of  imitation.  It  is  curious  to  see  those  minds  calling  them- 
selves "  positivists  "  yield  to  the  seduction  of  the  marvelous,  real- 
ized (according  to  them)  by  those  multiplied  coincidences ;  and 
preferring,  to  the  clear  explanation  of  those  resemblances  by  the 

'  "Some  would  like  to  know  if  colonies  (of  animals)  disorganize  and 
expire  of  themselves  at  the  end  of  a  limited  period  as  do  the  single  in- 
di\iduals  which  compose  them.  We  have  not  been  able  to  collect  any 
evidence  to  establish  it."     (Espinas,  "Soeietes  animates, "  p.  513.) 


I 


§3,  1.]  THE   ORIGIN    OF   LEGAL   INSTITUTIONS  43 

contagion  of  example,  their  own  obscure  explanation  of  atavism 
or  of  heredity.  We  may  be  allowed  to  enter  into  some  develop- 
ments of  this  subject. 

The  best  minds  may  be  warped  by  sj'stematic  preoccupation. 
For  proof  thereof  I  wish  none  other  than  INI.  Dareste.  "One 
thing  which  modern  works  have  clearly  brought  to  light,"  says 
he,  at  the  opening  of  his  book  on  the  "History  of  Law,"  "is  the 
affinity,  not  to  say  identity,  of  diverse  primitive  legal  systems. 
Philology  has  disclosed  by  admirable  discoveries  a  comm.on  origin 
for  the  greater  part  of  the  European  languages,  which  it  has  found 
connected  with  the  ancient  tongues,  now  extinct,  of  India  and 
Persia.  Yet  more  close  is  the  relationship  of  various  laws.  Not 
only  have  they  all  undergone  analogous  transformations,  but  they 
often  reappear,  one  and  another,  feature  for  feature,  and  almost 
word  for  word,  across  the  most  enormous  reaches  of  distance  and 
the  longest  intervals  of  time,  when  any  direct  borrowing  has  not 
been  possible ;  so  that,  to  explain  the  resemblance  which  could 
not  be  known  to  be  fortuitous,  it  is  necessary  to  admit  either 
that  the  two  peoples  had  one  origin  and  hence  a  common  tradi- 
tion, or  that  the  same  causes  everywhere  have  the  same  effects." 
Manifestly,  ]\I.  Dareste  strains  much  for  that  last  construction ; 
moreover,  we  notice,  he  states  the  problem  quite  well,  and  restricts 
himself,  besides,  to  comparing  the  laws  of  superior  races,  to  the 
discreet  exclusion  of  savages  of  every  race.  But,  even  within 
those  limits,  we  observe,  he  asserts  much  more  than  his  book 
proves.  Be  that  as  it  may,  since  he  expresses  himself  in  that 
manner,  we  need  not  be  astonished  to  see  JNI.  Letourneau,  who 
extends  to  all  tribes  and  nations  known  the  field  of  his  compari- 
sons, ascribing  the  same  unfortunate  uniformity  to  the  course 
of  their  juridical  transformations.  Nevertheless  with  him  the 
truth  often  has  the  better  of  his  predisposition ;  he  admits  orig- 
inal divergencies  in  the  social  development,  emerging  from  the 
lowest  savagery,  because  it  would  cost  him  too  much  to  merge 
republican  with  monarchical  tribes ;  and  that  base  of  distinction, 
although  at  best  obviously  too  narrow,  is  well  to  note.  In  his 
florid  style,  he  proceeds  also  to  portray  strikingly  the  juridical 
physiognomy  peculiar  to  each  people,  entirely  "sui  generis"; 
and  although  he  seriously  misconceives  therein,  through  a  pro- 
fessed horror  of  Romanists  and  imperialism,  the  commanding 
originality  of  the  Roman  Law,  he  exalts  beyond  measure  that  of 
the  Athenian  law,  in  his  love  for  democracies. 

The  evolutionists,  in  spite  of  all,  therefore,  agree  in  affirming 


44  INTRODUCTION  [§  3,  1. 

the  existence  of  a  peculiar  and  necessary  law  of  juridical  evolution. 
But  their  discord  appears  when  they  undertake  to  formulate  it 
and  to  define  the  phases  which  the  law  would  surmount  in  pass- 
ing through  the  course  of  its  history.  .  .  .  The  truth  is  [as  the 
present  volume  aims  to  demonstrate  in  detail]  that  in  no  one  of  the 
principal  branches  of  Law^  does  the  theory  of  a  uniformity  of  evolu- 
tion find  any  support.  And  for  that  matter,  most  evolutionists  are 
too  careful  and  too  sagacious  to  close  their  eyes  to  the  important 
dissimilarities  which  distinguish  the  historic  transformations  of 
different  Laws.  But  they  believe  themselves  warranted  to  give 
thereto  but  little  weight,  on  the  plea  that  if  in  each  society  evo- 
lution was  left  to  itself,  it  would  adapt  itself  to  their  formula. 
The  misfortune  is  that  this  hypothesis  is  untenable.  What  Law 
is  there  which,  without  influences  external  and  accidental  — 
borrowings  from  some  foreign  law  or  innovations  created  by  ori- 
ginal genius  or  even  indigenous  —  would  ever  be  spontaneously 
transformed?  .  .  . 

The  word  "evolution"  is  deceptive.  It  is  so  easy  to  pronounce 
that  it  naturally  imparts  an  impression  like  that  of  flowing  over 
sand,  without  obstacle  or  pause.  But,  if  we  enter  into  detail, 
we  perceive  that  the  fluidity,  the  apparent  continuity,  attributed 
thus  to  a  series  of  changes,  is  imaginary.  Take  any  law,  and  you 
will  see  that  its  so-called  evolution  continues  to  decompose  into 
laborious  importations,  —  most  frequently  ruddy  with  new  ideas 
added  in,  from  time  to  time,  from  one  side  or  another,  suddenly, 
none  knows  why.  They  have  been  grafted  upon  it,  —  be  it  by  a 
proselytic  religion  (Christian,  Islamic,  Buddhist),  by  external 
conquest  (the  Roman  law,  absorbed  more  than  imposed  upon  the 
vanquished,  even  on  the  Egyptians  and  on  the  Greeks ;  the  Eng- 
lish Law  replacing  the  Hindu  laws;  the  French  Law  islamized 
in  Algeria,  etc.),  or  be  it  by  internal  revolutions,  which  transfer 
the  power  of  patricians  to  plebeians,  or  of  the  Senate  to  the  Em- 
peror, or  of  the  Nobility  to  the  Third  Estate,  etc.,  or  by  an  inter- 
mittent infatuation  for  foreign  institution  and  laws.  The  ex- 
amples of  this  last  cause  of  juridical  renovation  are  numerous :  it 
will  suffice  us  to  point  out  the  influence  exerted  by  the  Roman 
Law  even  beyond  the  Roman  empire,  by  the  Greek  law  among 
the  Barbarians,  by  the  Chinese  Law  throughout  all  oriental  Asia, 
—  by  the  Canon  Law%  in  another  way,  upon  the  secular  law  of  the 
middle  ages  and  of  modern  times. 

Now  during  these  painful  engraftings,  slow  to  heal  and  not 
always  successfully,  the  Law  called  national  appears  to  have 


§  3,  1.]  THE    ORIGIN    OF   LEGAL   IXSTITUTIONS  45 

not  the  least  tendency  to  "evolute";  it  only  seems  inclined  to 
sit  still.  Each  of  those  advances  is  an  unexpected  stroke  of  a 
lash  which  arouses  and  swaj's  it.  Can  any  one  seriously  pretend 
that  the  classic  Roman  Law  waited  and  aspired  to  receive  the 
impulse  given  it  by  the  propaganda  of  Christianity,  and  which 
so  strongly  byzantinized  it  in  its  last  stage.  Who,  from  its  birth, 
predestined  it  to  that  regenerating  impulse?  And,  to  go  back 
further,  was  it  the  "actiones  legis"  of  Roman  law  which  of  them- 
selves tended  to  the  formulary  system  ?  The  edicts  of  the  praetors, 
the  voted  laws,  the  royal  edicts,  etc.,  were  mereh'  so  man}'  inter- 
mittent springs  of  the  law,  which  never  flowed  without  external 
stimulus.  This  supposed  necessity  of  juridical  evolution  is  like 
that  discarded  theory  which  insisted  that  all  language  passed 
through  the  three  successive  phases  of  monosyllabism,  of  agglu- 
tination, and  of  inflection.  INIodern  linguists  know  what  value 
to  ascribe  to  that  formula.   .  .  . 

II.    The  Theory  of  Imitation 

No  instance  of  similitude  can  be  found  in  the  Universe  w^hich 
has  not  as  a  cause  one  of  the  three  great  forms,  superposed  and 
blended,  in  the  universal  repetition :  undulation  (for  physical 
phenomena),  heredity  (for  living  phenomena),  imitation  (for  social 
phenomena  properly  so-called).  I  need  not  repeat  here  ^  the 
mutual  bearings  of  these  three  factors  in  universal  analogy.  It 
is  clear  that  we  should  take  account  of  the  three,  and  not  of  the 
last  alone,  to  furnish  a  complete  explanation  of  the  analogies 
presented  by  the  world  of  society,  which  springs  from  the  living 
and  expires  into  the  physical  order.  There  is  then  no  doubt  that 
the  influence  of  climates  and  races  do  not  furnish  the  key  to  many 
resemblances  observed  among  social  bodies  of  the  same  blood  or 
the  same  latitude.  The  importance  of  these  two  influences  in 
sociology  has  been  much  exaggerated,  because  of  ignoring  the 
dominant  part  of  the  third,  which  always  ends  by  using  the  others 
or  impressing  them  with  its  stamp.  What  is  continuous,  what  is 
essential,  what  is  subject  to  laws  susceptible  of  scientific  formula- 
tion, in  the  events  of  society,  is  the  characteristic  common  to 
them  all,  and  exclusively  proper  to  them  collectively,  namely, 
that  of  being  imitative  or  imitated. - 

^  I  have  devoted  to  that  subject  my  book  on  the  "Lois  de  rimitation" 
(Alean). 

2  We  do  not  even  except  inventions  and  discoveries  in  so  far  as  they 
are  sociological  facts.     Not  only  are  they  ahvaj's  in  part  imitative,  formed 


46  INTRODUCTION  [§  3,  1. 

Whether  imitation  is  conscious  or  unconscious,  intelligent  or 
stupid,  instruction  or  habit,  matters  not.  Speaking,  praying,  work- 
ing, fighting,  doing  whatsoever  sort  of  social  act,  involves  repeating 
what  one  has  learned  from  some  one,  who  had  acquired  it  from 
some  one  else ;  and  so  one  after  another  back  to  the  first  framers 
of  each  word-root  transmitted  identically  from  mouth  to  mouth, 
for  thousands  of  years,  —  like  the  waves  of  light  or  sound  from 
atom  to  atom,  —  back  to  the  first  authors  of  each  form  of  rites, 
of  each  method  of  labor,  of  each  mode  of  war,  fencing-boots,  tac- 
tics, strategic  ruses,  which  pass  from  man  to  man  during  a  period 
more  or  less  prolonged. 

I  do  not  say  that  Imitation  is  all  of  social  reality ;  it  is  but  one 
expression  of  the  sympathy  which  antedates  it  and  which  it  inten- 
sifies in  expressing;  and  it  depends  upon  invention,  the  spark 
from  which  it  is  only  the  greater  light.  It  begins  by  being  in 
some  sort  a  vassal  to  Heredity,  as  long  as  the  social  group  is  con- 
fined to  the  family,  and  the  effect  of  examples  is  limited  to  the 
narrow  circle  of  the  relatives.  Then,  when  it  became  free  of  the 
family,  when  it  even  dominated  in  its  turn,  it  yielded  so  much  the 
more  to  another  rule :  it  was  subjected,  we  know,  to  the  higher 
laws  of  Logic,  as  was  undulation  to  the  laws  of  mechanics.  But  it 
is  none  the  less  certain  that  it  alone  weaves  together  the  tissues 
of  society  arranged  by  social  Logic.  It  is  the  w^arp  and  woof  of 
humanity.  The  artist  views  it  from  the  right  side,  the  side  of  its 
embroideries,  of  its  variations  bright  and  fleeting ;  but  which  the 
philosopher  is  bound  to  examine  from  the  back,  from  the  side  of 
its  repetitions,  —  singly  to  be  weighed,  singly  numberable,  singly 
formulable  into  statistical  groups  or  into  scientific  laws.  What 
was  physics  before  the  theory  of  undulation  had  made  its  entry 
therein,  even  though  the  laws  of  mechanics  were  already  known  ? 
Very  little.  So  will  be  sociology,  as  long  as  it  does  not  accord 
due  place,  a  large  and  controlling  part,  to  the  theory  of  Imita- 
tion. 

From  failing  to  observe  the  universality,  the  continuity,  the 
greater  importance  of  the  fact  of  Imitation  in  history,  many 
archeologists,  many  historians,  even  the  most  circumspect  and  lucid, 
are  led  into  most  erroneous  inferences.  .  .  .  INI.  Fustel  de 
Coulanges  himself,  after  remarking  that  the  feudal  system  mani- 

by  a  mental  junction  of  various  imitations,  _but  again,  even  in  so  far  as 
they  are  most  original,  they  must  be  imitated  to  become  social  facts,  not 
merely  individual  facts.  An  invention  not  utilized,  an  idea  not  carried 
out,  not  reflected  in  the  soul  of  another,  is  as  if  it  did  not  exist,  socially 
\'iewed. 


§  3,   1.]  THE    ORIGIN    OF    LEGAL    INSTITUTIONS  47 

fested  itself  among  peoples  not  in  the  least  Germanic,  in  Southern 
Gaul,  the  Byzantine  Empire,  Slavonia,  Hungary,  Ireland,  the 
same  as  among  those  nations  who  were  not  in  the  least  Romanic, 
concludes   thus : 

' '  It  manifested  itself  among  all  races  ;  it  is  neither  Romanic  nor  German  ; 
it  belongs  to  human  nature." 

Nevertheless,  before  having  recourse  to  a  quasi-miraculous 
hypothesis  of  spontaneous  generation  of  that  unique  system, 
everywhere  the  same,  in  Heaven-knows-how-many  different 
places,  is  there  no  room  to  inquire  if  its  relative  ubiquity  —  exag- 
gerated, at  that  —  is  not  explainable  by  simpler  methods  of  ordi- 
nary up-building  of  society,  —  that  is  to  say,  of  Imitation  ?  Xow, 
all  the  researches  of  the  eminent  historian  that  I  have  just  cited 
tend  precisely  to  show  that  the  scattered  elements  of  the  feudal 
system  existed  almost  in  entirety  in  the  institutions  of  the  Roman 
Empire,  and  that  their  simultaneous  synthetic  development  has 
been  the  result  of  the  special  circumstances  in  which  the  Roman 
world  of  the  West,  especially  Gaul,  found  itself  after  the  fall  of 
the  imperial  power.  .  .  . 

All,  then,  that  is  clear,  definite,  characteristic  in  resemblances 
of  whatsoever  category  —  whether  of  language,  religion,  politics, 
economics,  law  —  which  the  evolutionists  have  pointed  out 
among  different  peoples,  even  far  apart,  has  Imitation  for  its  cause. 
Such,  beyond  doubt,  are  the  striking  analogies  presented  to  those 
different  points  of  view,  by  the  Hindus,  the  Germans,  the  Slavs, 
the  Celts,  the  Latins,  the  Greeks,  —  nations  which  some  are 
pleased  to  group,  under  the  name  of  i\.ryan,  in  the  same  hypothet- 
ical race.  Whether  that  hypothesis  prove  correct  or  not,  .  .  . 
the  misfortune  is  that,  when  once  this  family  tree  of  the  so-called 
Aryans  had  been  specifically  described  (as  also  that  of  the  Semites 
and  of  other  extensive  race-stocks)  scholars  began  to  detect, 
among  peoples  unrelated  to  each  other,  resemblances  in  religion 
and  law,  equal  in  exactness  and  in  importance  to  those  of  the 
races  regarded  as  co-related.  For  instance,  the  several  Aryan 
peoples,  as  between  themselves,  show  us  nowhere  any  coinci- 
dence more  complete  than  that  which  I\I.  Seignette  '  has  pointed 
out  between  the  customs  of  the  Arabs  before  INIahomet  and  the 
institutions  of  the  primitive  Romans.  "The  paternal  authority 
in  all  its  rigor,  the  perpetual  tutelage  of  the  women,  wills,  the 

'  French  translation  of  the  "Code  musulman"  of  Khalil,  introduction, 
p.  xxxvii. 


48  INTRODUCTION  [§  3,  1. 

heredity  of  male  descendants,  patrons  and  gentiles,  their  tutelage 
testamentary  guardianship,  the  'nexum,'  the  'pignoris  capio, 
the  noxal  surrender,  retaliation,  composition  for  feuds,  the  rela- 
tions of  patron  and  client,  —  all  these  customs,  inscribed  in  the 
Roman  law  of  the  Twelve  Tables,  correspond  to  ante-islamitic 
usages  identically  similar,  in  Arabia,  of  which  some  were  continued, 
the  others  abolished,  by  the  Koran."  If  we  recall  the  proximity 
of  Arabia  and  of  India,  where  analogous  customs  prevailed,  and 
the  mutual  inclination  of  neighboring  peoples  to  borrow  their 
civil  institutions,  much  more  than  their  religions  and  above  all, 
more  than  their  idioms,  it  is  easy  to  explain  those  resemblances 
by  imitative  action.  What  confirms  this  interpretation  is  the 
many  other  points  of  juridical  contact  between  the  Aryans  and 
the  Semites.  They  are  of  such  exactness  that  their  spontaneous 
appearance   is   absolutely   inconceivable.   ... 

But,  perhaps  we  have  not  sufficiently  remarked  upon  the  direct, 
immediate  action  of  Imitation  upon  the  law,  when  it  has  the  latter 
itself  as  its  objective.  By  that  process,  the  juridical  unity  of 
diverse  classes  and  of  diverse  provinces  of  a  nation  cannot  fail 
to  be  wrought,  in  course  of  time.  It  unites  classes  as  well  as 
provinces  by  the  everlasting  yearning  of  the  inferior  to  imitate 
the  superior.  The  juridical  customs  of  the  higher  classes  de- 
scend, through  the  various  grades  of  the  nobility,  to  the  lowest 
ranks  of  the  commonalty,  and  help  to  obliterate  the  diversity  of 
their  own  customs.  Likewise,  the  large  cities  pass  on  their  char- 
ters to  the  small,  the  small  cities  to  the  towns,  and  their  disparity 
of  custom  disappears.  The  most  brilliant  nations  illumine  in 
the  same  way  the  more  obscure.  I  have  above  already  indicated 
the  contagious  descent  of  the  law  of  primogeniture  from  the  no- 
bility to  the  people.  ...  In  a  group  of  peoples  in  contact, 
the  most  civilized  communicates  its  Law  to  its  neighbors  by  a 
sort  of  juridical  exosmosis.  Thus,  in  the  middle  ages,  the  Ger- 
man law  penetrated  into  Bohemia  and  Poland ;  and  was  intro- 
duced there  at  the  beginning  through  the  most  enlightened  strata 
of  the  population,  through  the  cities.  The  law  of  Magdeburg 
has  served  as  a  model  for  the  greater  part  of  the  Cech  cities  of 
the  north  and  for  nearly  all  the  Polish  cities.  Italian  influence, 
during  the  same  epoch,  made  itself  felt  in  the  laws  of  Dalmatia.  .  .  . 


§  3,  1.]  J  THE    ORIGIN    OF    LEGAL   INSTITUTIONS  49 

III.     The  Element  of  Logic  in  Evolution 

But  not  all  the  similitudes,  even  of  social  origin,  appearing  in 
legal  systems  (or,  better  say,  juridical  activities)  of  diverse  peoples, 
have  Imitation  as  their  cause.     Many  arise  from  Logic. 

Though  man  is  imitative,  it  is  because  he  is  inventive.  Though 
the  influence  of  a  flood  of  examples  ceaselessly  operates,  like  the 
leveling  process  of  the  watersheds,  whence  millions  of  rivulets, 
brooks,  and  rivers,  each  contributes  to  what  may  be  called  the 
alluvial  deposits  of  civilization,  yet  this,  I  repeat,  is  because  from 
time  to  time  innovations,  great  or  small  —  mountains  or  hills  — 
have  risen  up.  And  if  man  is  inventive,  it  is  because  he  is  logical. 
Logical  or  inventive  —  it  is  all  one,  at  bottom.  An  invention,  a 
discovery,  is  but  the  response  to  a  problem ;  and  that  response 
consists  always  in  connecting  with  each  other,  through  the  ad- 
justment of  means  to  end,  methods  of  action  formerly  isolated 
and  barren ;  by  connecting  with  each  other,  through  the  no  less 
fertile  relation  of  principle  to  result,  those  ideas  or  perceptions 
which  previously  seemed  to  have  nothing  in  common.^  .  .  . 

Now,  though  there  are  reasons  to  think  that  this  work  of  logic, 
as  it  progresses,  should  end  in  divergent  results,  characteristic 
and  artistic,  there  are  also  reasons  to  believe  that,  in  many 
respects,  its  effects  will  inevitably  be  more  or  less  similar.  These 
similitudes  will  be  of  two  sorts :  some  will  be  merely  formal, 
others  substantial. 

Here  is  an  example  of  the  first  sort.  ^I.  Dareste  points  out, 
in  passing,  an  indisputable  resemblance  between  the  development 
of  the  ^Moslem  law  and  that  of  the  Roman  law ;  but  the  main 
thing  is  to  interpret  this  correctly.  The  great  Arabic  jurists 
worked  on  the  rather  narrow  basis  of  the  Koran,  as  the  great 
Roman  jurists  did  on  the  no  less  narrow  foundation  of  the  law  of 
the  Twelve  Tables.  The  former,  like  the  latter,  developed  the 
law  by  means  of  doctrinal  authority,  changing  constantly  by 
innovations  under  the  pretext  of  construction.  Hanifat,  ]\Ialek, 
Chefei,  and  Hanbal  in  the  700  s  and  800  s,  "  created  the  INIoslem 
Law,  as  Sabinus  and  Labeo  before  them  had  created  the  Roman 

1  This  is  not  the  place  to  develop  this  thought.  But  the  learned  reader- 
will  not  fail  to  supply  examples  drawn  from  the  history  of  the  sciences  and 
industries.  The  discovery  of  Newton,  for  instance,  consisted  in  viewing 
two  ideas,  until  then  strangers  to  each  other,  the  fall  of  terrestrial  bodies 
and  the  attraction  of  gravitation  of  the  moon  around  the  earth,  as  two 
effects  of  the  same  principle.  The  invention  of  the  locomotive  consisted 
in  uniting  teleologically  two  modes  of  action,  until  then  separated,  the 
steam  piston  and  the  movfiment  on  wheels,  etc. 


50  INTROPUCTION  [§  3,  1. 

Law.  Rome  had  had  the  Sabinians  and  the  Prociilians.  Islam 
had  the  Hanifites,  the  INIalekites,  the  Chefeites  and  the  Han- 
bahtes,  all  equally  orthodox,"  but  of  vision  more  or  less  broad. 
"x\t  last  this  great  movement  ended  with  the  Arabs  as  it  had  at 
Rome.  At  a  certain  moment,  production  ceased  and  sterility 
came."  This  is  very  true.  But  to  see  correctly  the  significance 
of  this  comparison  it  is  needful  to  compare  it  with  many  others, 
in  the  juridical  world  or  even  beyond  it.  The  Hebrew  Law  was 
developed  entirely  in  the  same  way.  The  great  rabbis  had  elaborated 
the  law  of  Moses,  which  became  little  by  little  the  Mishnah  and 
the  Talmud ;  they  founded  rival  schools,  and  their  work,  at  last, 
stopped,  having  reached  a  relative  perfection.  In  the  same  way, 
in  every  land  which  becomes  civilized,  we  see  learned  grammarians 
elaborate,  refine,  expand,  and  establish  the  national  language,  — 
a  sort  of  Koran  fallen  from  the  sky,  of  which  they  are  the  respect- 
ful and  ingenious  commentators  or  falsifiers.  ...  A  language, 
especially  on  its  grammatical  side,  is  a  logical  ivhole.  So,  too,  is  a 
religion,  when  reduced  to  theology.  So,  too,  a  Code.  Amidst 
ages  of  invasions  and  disasters,  the  Corpus  Juris  reigns  yet  in 
Europe.  Move  remarkable  still,  the  Mishnah  —  the  Corpus 
Juris  of  the  Jews,  elaborated  by  the  great  Hebrew  jurists  —  per- 
sists still,  in  spite  of  the  dispersion  of  its  people. 

This  inherent  force  of  resistance  in  every  system,  and  this 
tendency  of  everything  social  to  develop  into  a  sj'stem,  is  a  re- 
semblance which  has  nothing  imaginary  about  it ;  and  it  is  uni- 
versal and  deep-rooted.  But  what  does  it  signify?  Does  it 
mean  that  there  is  any  magical  formula  for  an  evolution  through 
which  everything  must  perforce  pass  ?  By  no  means.  It  signifies 
merely  that  man  is  a  logical  animal,  —  that  his  need  for  system 
and  coordination  has  periods  of  excitation  followed  by  periods 
of  calm.  We  may  observe  the  birth  and  grow^th  of  his  religious 
ideas,  the  logical  elaboration  of  them,  their  consummation  in 
theologies ;  the  rise  of  new  problems,  and  the  new  eft'orts  to  solve 
them.  ...  So  too  in  man's  desires,  and  the  process  of  their 
harmonization,  the  logic  of  social  growth  proceeds  in  the  same 
manner.  The  human  heart  is  born  replete  with  aspirations  as 
incoherent  as  its  thoughts;  to  make  a  world  from  that  chaos, 
to  transform  that  incoherence  into  mutual  advantage,  be  it  in 
the  breast  of  the  individual,  be  it  consequently  in  the  social  group, 
—  that  is  the  problem  which  confronts  the  first  law-givers,  often 
the  same  as  the  makers  of  their  creeds.  It  was  solved  by  laws 
regarded  as  divine,  —  the  law  of  Moses,  of  Zoroaster,  of  j\Ianou, 


§  3,   1.]  THE   ORIGIN   OF   LEGAL   INSTITUTIONS  51 

of  ]\Iahomet.  But,  after  a  certain  time,  new  requirements,  new 
domestic  precepts  engendered  by  the  inventions  of  civilization, 
by  contact  with  foreigners,  as  in  the  case  of  Israel  and  of  Islam, 
became  difficult  to  harmonize  with  the  established  laws.  Then 
would  the  jurists  on  the  one  hand,  the  casuists  on  the  other,  exert 
themselves  to  disguise  the  inconsistencies  or  to  absorb  them  into 
some  paramount  harmony.  They  are  supposed  only  to  expound 
the  ancient  law ;  but,  in  reality,  they  are  forced  to  substitute 
in  part  for  its  commands  others  no  less  imperative,  prompted  by 
the  new  requirements.  .  .  . 

Sir  Henry  j\Iaine  has  pointed  out  the  important  role  of  fictions  in 
transforming  the  law  gradually.  The  authors  of  these  ingenious 
expedients  produce,  in  the  concrete,  the  same  thing  as  did  the 
author  of  the  law  himself  in  creating  it ;  Mahomet,  for  instance, 
did  nothing  more  than  re-cast  the  ancient  customs  of  the  Arabs 
and  adapt  them  to  his  epoch.  Then  there  comes  a  moment  when 
the  structure  of  jurisprudence  and  of  casuistry  seems  complete. 
People  admire  it,  they  call  it  sacred,  —  so  long  at  least  as  the 
social  state  be  not  reformed.  But  when  this  reform  takes  place, 
the  development  by  logic  retains  what  is  most  attractive,  always 
the  same  at  bottom.  To  be  sure,  modern  legislators,  in  contrast 
with  the  ancient,  do  not  seem  to  take  account  of  precedents. 
However,  that  is  but  in  mere  appearance.  The  power  of  legisla- 
tively upsetting  everything  which  in  theory  belongs  to  our  deputies 
and  senators,  is  but  ostensible ;  they  are  compelled  to  respect,  in 
a  certain  measure,  the  ancient  laws,  the  juridical  habits  of  the 
people,  and  also  to  suggest  for  their  needs,  old  or  new,  what 
should  satisfy  them  conformably  to  those  habits.  In  fact,  their 
apparent  omnipotence  is  nothing  but  a  willing  or  enforced  obe- 
dience to  those  needs,  to  these  commands  of  their  electors.  These 
orders  are  for  them  what  the  commands  of  ]\Ioses  were  for  the 
rabbis,  or  the  precepts  of  the  Koran  for  the  Arabian  jurisconsults. 
Oldtime  jurisconsults  or  contemporary  legislators  equally  exhibit 
such  submission  to  superior  commands,  which  they  work  out 
logically  in  subordination  to  hierarchical  principles,  conforming 
the  one  to  the  other.  After  which,  the  statutes  voted  and  pro- 
mulgated are  gi^^en  effect  by  our  commentators  of  to-day,  pro- 
fessors, judges,  counselors,  in  the  form  of  judicial  decisions  or  of 
scientific  doctrine,  —  a  mass  of  things  of  which  their  authors 
never  dreamed. 

After  all,  then,  the  similitude  of  evolution,  very  vague  and 
altogether  formal,   between  the  Moslem  Law  and  the  Roman 


52  INTRODUCTION  [§  3,  1. 

Law,  as  alleged  by  ]\I.  Dareste,  is  merely  a  case  of  resemblance, 
on  a  larger  and  more  prolonged  scale.  And  it  consists  in  this, 
that  evolution,  in  every  category  of  social  facts,  has  always  as  a 
starting  point  a  certain  number  of  natural  jierceytions  or  ideas 
learned,  of  needs  inborn  or  acquired,  upon  which  operates  a  general 
need  (both  innate  and  more  and  more  developed)  for  logical  co- 
ordination ;  lohich  general  need  itself  has  its  mci^situdes  of  agitation 
and  of  appeasement,  —  the  latter  when  it  is  satisfied  for  a  time  by 
an  imposing  and  monumental  work,  and  the  former  when  the 
growth  of  new  ideas  and  desires  necessitates  the  work  of  remodeling 
or  of  reform.  .  .  . 

IV.    Law  as  a  Branch  of  Sociology 

Before  concluding,  I  have  to  insist  on  the  importance,  sometimes 
much  ignored,  of  studying  the  law  as  a  branch  of  sociology,  if  we 
wish  to  grasp  it  in  its  living  and  complete  reality.  It  is  not, 
furthermore,  a  mere  branch  of  that  great  tree  which  can  be  severed 
with  impunity  from  the  trunk,  and  which  does  not  draw  its  sap 
from  its  location  in  relation  to  the  others,  by  reason  of  multiple 
resemblances,  and  of  differences  not  less  instructive,  which  that 
relationship  reveals  in  their  diverse  modes  of  growth.  Juridical 
e^•olution  most  of  all  calls  for  elucidation  in  this  way.  Strictly 
speaking,  the  development  of  a  religion,  of  an  art,  of  science 
(such  as  geometry),  of  an  industry  (such  as  that  of  metals  or  of 
textile  fabrics),  may  be  explained  separately.  Not  so  a  body  of 
Law ;  for  the  Law,  among  the  other  social  sciences,  has  this  distinct 
characteristic  of  being,  like  language,  not  merely  an  integral  part 
but  an  integral  mirror  of  social  life.  .  .  . 

That  is  why  so  frequently,  in  the  course  of  this  study,  I  have 
remarked  the  similitudes  between  the  march  of  the  law  and  the 
march  of  language  in  the  evolution  of  humanity.  These  simili- 
tudes are  the  more  interesting  in  that  they  evidently  belong  in 
the  category  of  those  not  caused  by  Imitation.  To  all  the  analo- 
gies which  I  have  pointed  out  in  the  foregoing,  in  passing,  I  could 
add  many.  Let  us  gather  some  of  them,  at  random,  barely  enough 
to  give  to  others  a  taste  of  the  reaping  here,  and  to  furnish  a  pass- 
ing illustration  of  the  general  truths  announced  by  us. 

Law  and  Language,  we  know,  are  imitative  and  follow  routine 
to  a  leading  point.  Nothing  is  evolved  therefrom  save  by  the 
steady  and  combined  play  of  three  forms  of  imitation :  the  imita- 
tion of  others,  under  its  two  aspects,  the  copy  of  a  contemporary 


§  3,  1.]  THE   ORIGIN   OF   LEGAL  INSTITUTIONS  53 

model  ("fashion"),  and  the  copy  of  an  old  model  ("custom"), 
and  the  imitation  of  itself  ("habit").  But  that  which  dominates 
and  gives  the  tone,  is,  both  in  Language  and  in  Law,  the  influence 
of  custom.  When  the  rush  of  novelties  gathered  by  fashion,  here 
or  there,  exceeds  a  certain  degree,  always  very  low,  the  difficulty 
of  classifying  them  and  placing  them  logically  in  a  system  of 
theories  or  of  institutions  already  long  established,  produces  a 
crisis,  a  disorder  of  the  law  or  of  the  language ;  and  it  must  needs 
be  that  one  or  the  other  either  die  thereof,  or  that  it  expel  violently 
a  greater  part  of  those  undigested  foods,  too  hastily  swallowed. 
^Moreover,  it  has  always  been  impossible  to  implant  and  to  keep 
alive  in  any  nation,  even  the  most  enslaved,  a  Language  or  a  Law 
made  entirely  of  fragments,  however  logically  and  artistically 
collected  they  may  possibly  be.  Those  excellent  compositions 
perished  almost  at  birth,  despite  the  insistence  of  the  amalgamated 
legislators  or  grammarians  that  they  should  live.  Why?  Pre- 
cisely because  logic  is  the  supreme  thing  wanting.  For  this  need 
of  Logic,  in  Language  as  in  Law,  divides  asunder  those  who  combat 
it.  And  this  combat  infuses  all  the  life,  all  the  difficulty,  all  the 
interest  into  the  elaboration  of  the  law  and  of  language  throughout 
all  time. 

If  there  was  no  issue  involved  but  to  reconcile  with  each  other 
the  elements  of  a  law  or  of  a  language,  so  as  to  produce  a  regular 
and  coherent  whole,  the  task  would  be  very  easy.  But,  comcident 
with  the  effort  of  the  grammarians  or  the  jurists  (or  rather  of  the 
entire  public),  thus  conspiring,  wittingly  or  unwittingly,  but  in- 
variably, against  such  logical  internal  arrangement  of  a  grammar 
as  refines  it  little  by  little  of  its  exceptions  and  incongruities,  or 
of  a  codification  which  little  by  little  is  improved  and  systematized, 
another  and  primary  task  is  presented  to  put  the  grammar  and  the 
codes  in  accord  with  the  society  which  they  should  go^'ern,  and  to 
perfect  this  accord  constantly.  This  last  accord  itself  is  a  logical 
arrangement,  in  another  sense  of  the  word,  —  teleological,  to 
speak  exactly.  Xow,  the  state  of  society,  if  we  include  m  one 
glance  the  opposing  ideas  and  claims  which  there  confront  each 
other,  is  always,  in  great  part,  illogical  and  incoherent.  For  a 
body  of  Law,  therefore,  as  for  the  structure  of  a  Language,  the 
problem  of  evolution  consists  in  adapting  it  to  itself  as  much  as 
possible,  tchile  also  adapting  it  to  a  society  which  never  very  icell 
adapts  itself  to  itself. 

It  consists,  in  other  words,  in  making  the  logical  out  of  the 
illogical.     It  follows  that  the  danger  is  ever  present  of  sacrificing 


54  INTRODUCTION  [§  3,   1. 

one  of  these  two  concurrent  and  contradictory  aspirations.  And 
the  grammarians,  Hke  the  jurists,  have  a  pronounced  predilection 
to  insist  improperly  upon  the  former,  while  the  public,  happily, 
has  the  contrary  tendency.  Hence,  the  two  different  maladies 
by  which  the  Law,  and  Language  also,  may  be  affected  :  namely, 
either  to  accord  with  themselves,  but  not  with  the  social  environ- 
ment, —  like  a  revolutionary  Constitution,  or  like  Volapiik,  the 
most  regular  of  languages ;  or  to  harmonize  fully  with  the  social 
world  but  not  with  themselves,  —  like  the  confused  mass  of  the 
English  laws,  and  like  most  of  our  European  languages.  .  .  . 

We  cannot,  of  course,  more  than  touch  this  vast  subject.  We 
may  remark,  in  closing,  that  if  we  attempt  to  embrace  in  but  one 
glance  the  successive  phases  of  different  languages,  we  perceive 
nowhere  any  tendency  of  these  various  linguistic  evolutions,  much 
as  they  seem  independent,  to  converge  toward  one  single  language 
or  toward  one  single  final  state.  To  an  analogous  result  the  study 
of  the  various  juridical  evolutions  has  led  us.  All  that  we  see 
clearly  is  the  tendency  to  supremacy  of  one  sole  language  or  of  a 
very  small  group  of  languages,  and  of  one  sole  Law,  or  of  a  very 
small  group  of  Laws,  and  of  a  language  or  of  a  Law^  common  to 
all  classes  of  the  society.  Now  this  is  the  double  inevitable  con- 
sequence of  the  long  continued  influence  of  Imitation.  The 
farther  we  trace  back  into  the  past,  the  more  we  discover  of 
distinct  idioms,  and  of  customs  having  the  force  of  law ;  so  that 
in  the  beginning  we  might  suppose  that  there  were  as  many  lan- 
guages and  laws  as  villages.^  But,  in  proportion  as  the  relations 
between  men  multiply,  the  greater  part  of  these  linguistic  and 
juridical  creations,  so  astonishingly  multiplied,  are  impeded  or 
destroyed ;  because  a  small  number  of  them,  and  not  always  the 
best,  are  indebted  to  circumstances  historical,  ethnical,  geographi- 
cal, much  more  than  to  their  intrinsic  superiority,  for  the  privilege 
of  expanding  over  the  globe.  On  the  other  hand,  and  simulta- 
neously, changes  are  brought  about  in  languages  by  borrowing  of 
"noble"  words  into  common  speech,  of  literary  words  into  the 
ordinary  style  —  acquisitions  often  ironical,  but  always  imitative. 
And  these  changes  correspond,  in  the  Law,  to  those  produced  by 
importation  {e.g.  the  rule  of  primogeniture  imported  into  the 
plebeian  birthright),  and  by  the  gradual  extension  to  inferior 
classes  of  some  laws  originally  reserved  to  the   superior  classes. 

1  This  is  so  true  that,  even  for  our  own  epoch,  the  village,  according 
to  M.  Arsene  Dumont,  is  the  linguistic  unit  ("Rev.  scientif.,"  10  Sept. 

1S92). 


§  3,  2.]  THE    ORIGIN    OF    LEGAL   INSTITUTIONS  55 

Little  by  little,  in  that  way,  is  established  one  language  alike  for 
all,  and  one  Law  alike  for  all. 

2.   CRITICISM    OF    THE    IMITATION    THEORY  i 

Unfortunately,  it  is  necessary  to  confess  that  the  views  expressed 
by  M.  Tarde  are  not  at  all  those  which  we  believe  to  be  well 
founded.  Scarcely  at  any  point  are  we  able  to  join  in  his  conclu- 
sions. Assuredly,  M.  Tarde  is  a  man  of  too  much  intelligence, 
and  of  too  keen  a  mind,  but  that  much  may  be  extracted  from  his 
last  work  (like  those  w^hich  preceded  it),  and  but  that  this  work 
would  be  very  rich  in  sound  methods  of  thought,  and  in  profitable 
themes  and  reflections,  and  would  advance  a  variety  of  fertile 
ideas.  But  this  is  not  the  book  on  the  evolution  of  law  which  the 
friends  of  this  science  w^ould  have  desired  —  an  inventory  of  the 
researches  already  made,  at  once  friendly  and  critical,  setting 
forth  neither  with  an  easy-going  faith,  nor  with  preconceived 
hostility,  the  results  which  seem  to  be  attained,  those  which  appear 
only  probable,  and  those  which  are  yet  in  doubt,  giving  conjecture 
for  conjecture  without  masking  objections,  and  admitting  more 
frankly  the  legitimacy  of  the  method  and  what  it  has  accom- 
plished. 

It  is,  in  truth,  on  the  contrary,  almost  entirely  a  book  of  nega- 
tive controversy,  directed  as  well  against  the  principle  of  the  new 
studies  [on  the  evolution  of  law]  as  well  as  its  applications.  It  is 
a  denial  both  of  the  whole  and  its  parts.  Going  to  the  entirety 
of  the  principle,  M.  Tarde  rejects  the  doctrine  that  one  evolution, 
identical  in  its  chief  features,  normally  is  presented  under  the  in- 
fluence of  the  same  causes,  and  apart  from  all  imitation,  in  the 
juridical  institutions  of  the  most  diverse  peoples.  He  combats 
the  idea  according  to  which  the  different  groups  of  mankind,  in  their 
social  development,  follow  the  same  path  of  development ;  which, 
while  it  does  not  yet  lead,  and  may  perhaps  never  lead,  to  the  same 
social  destiny,  yet  shows  the  same  direction  for  all ;  and  according 
to  which  those  peoples  which  have  proceeded  more  rapidly  in  the 
march  of  evolution  have  necessarily  passed  the  stages  shown  among 
races  of  tardier  development.  Touching  the  detail  of  the  matter, 
he  denies,  for  example,  in  criminal  law,  that  our  modern  codes 
have  sprung  from  a  system  of  private  vengeance.  In  the  field 
of  family  law,  he  denies  the  priority  of  female  kinship  and  the 

1  [Bj'  Paul  Frederic  Girard.  Translated  by  Albert  Kocourek,  from 
"Melanges  de  droit  Romain  (I,  Histoire  des  Sources),"  Recueil  Sirey, 
Paris,  1912.] 


56  INTRODUCTION  [§3,  2. 

maternal  family  (which  however  is  not  to  be  confused  with  the 
somewhat  improper  term  "matriarchate"  — according  to  the  hypoth- 
esis of  a  general  phase  of  female  authority)  to  the  patriarchal  family 
and  masculine  relationship,  from  which,  in  turn,  the  modern  family 
arose.  In  the  sphere  of  immovable  property,  he  rejects  the  de- 
velopment of  collective  proprietorship  of  the  clan  and  the  tribe, 
leading  to  collective  ow'nership  in  the  family,  and  then  to  individ- 
ual ownership.  He  opposes  also  a  variety  of  other  things  which 
appear  to  be  clearly  established  from  the  bringing  together  of  primi- 
tive institutions. 

In  this  respect,  talent  apart,  and  with  all  deference,  this  little 
volume  does  not  differ  greatly  from  those  which,  thirty  to  fifty 
years  ago,  protested  in  the  name  of  orthodox  spiritualism  against 
the  intermixture  of  natural  science  in  the  domain  of  psychology, 
or  the  current  accounts  of  those  who  to-day  combat,  with  the  same 
zeal,  the  pretension  to  the  discovery  of  sociological  laws.  ]M. 
Tarde's  originality  lies  in  this,  that  he  does  not  reject  these  laws, 
and  that  he  repudiates,  as  frankly  as  anyone,  the  narrow  skepticism 
which  sees  in  social  facts  only  a  fortuitous  combination  of  con- 
flicting contingencies.  M.  Tarde  admits  that  juridical  facts  are 
governed  by  law,  or  rather,  in  chief,  by  one  law" ;  and  he  renounces 
all  other  explanations  in  order  to  make  more  room  for  his  ow^n 
explanation  of  this  law  of  imitation.  It  is  to  this  law  that  he 
offers  a  holocaust  of  all  the  results  which  the  investigations  in 
comparative  law  have  been  obliged  to  derive  from  other  founda- 
tions.    We  claim  openly  for  these  researches  the  right  of  existence. 

We  are  quite  ready  to  admit,  that  in  the  growth  of  law,  imita- 
tion has  played  a  very  important  part  —  a  part  much  more  impor- 
tant than  is  generally  believed,  if  M.  Tarde  wishes.  But  it  is  not 
allowable  on  this  account  to  deny  all  other  development,  or  to 
draw  the  history  of  all  other,  or  nearly  all  other,  changes  from  a 
single  inventor  wdiose  discovery  then  in  rapid  waves  has  swelled 
over  the  entire  globe.  It  is  much  more  likely  that  there  have 
been  a  great  many  inventors.  They  have  been,  w^e  believe,  count- 
less, and  their  successive  and  similar  inventions,  greatly  multiplied  in 
number  and  very  limited  in  scope,  have  been  the  product  of  another 
cause,  as  it  were,  the  mechanical  operation  of  circumstances.  It 
is  seen,  even  in  our  own  epoch,  in  astronomy,  in  physics,  and  in 
chemistry,  how  the  same  discoveries  and  the  same  inventions  have 
been  independently  made,  a  few  days  apart  by  different  scientists ; 
at  the  moment  when  the  general  state  of  knowledge  made  these 
inventions  imminent,  or  when,  as  we  may  say,  they  were  demanded 


§  3,  2.]  THE    ORIGIN    OF    LEGAL   INSTITUTIONS  57 

by  surrounding  conditions.  The  same  multiplicity  was  all  the 
more  necessary  to  produce  juridical  inventions  in  epochs  and  places 
widely  separated,  among  those  where  it  must  well  be  conceded, 
notwithstanding  ]M.  Tarde,  that  communication  was  much  more 
rare  and  difficult  than  among  the  learned  of  the  civilized  world  of 
to-day.  There,  also,  the  same  surrounding  circumstances  must 
have  urged  into  being,  repeatedly,  at  divers  times  and  in  divers 
places,  the  same  fundamental  juridical  inventions ;  afterwards 
developed  and  transformed  by  a  variety  of  partially  identical  in- 
ventions, under  the  influence  of  similar  circumstances,  following 
a  mechanical  operation,  corresponding  exactly  to  that  which  to-day 
produces  the  discovery  of  the  same  planet  or  the  same  industrial 
improvement  by  different  men  strangers  to  each  other.  There 
can  be  no  question  there  either  of  imitation,  or  of  laws  of  imitation. 
It  is,  we  beheve,  even  precisely  and  solely  when  imitation  is  not 
involved,  when  it  is  not  a  factor,  and  when  legal  development 
clearly  proceeds  without  any  borrowing,  in  its  independent  origi- 
nality, that  we  may,  in  the  proper  sense,  inquire  into  the  laws  of 
legal  evolution ;  according  to  which  not  only  certain  juridical  in- 
stitutions, but  certain  forms  of  such  a  given  institution,  appear 
in  each  group  at  a  definite  period  and  not  at  another,  after  a  certain 
phase  of  development  and  before  another. 

i\I.  Tarde  summarizes  nearly  all  the  laws  of  juridical  develop- 
ment in  that  of  imitation.  We  believe,  on  the  contrary,  that  it 
can  scarcely  be  doubted  that  there  are  laws  other  than  that  of 
imitation.  The  phenomena  of  imitation,  however,  cannot  be 
ignored  ;  they  are  a  part  of  the  aggregate  of  juridical  development. 
One  who  wishes  to  understand  this  development  cannot  omit 
to  study  what  produces  it ;  how,  when  by  the  will  of  an  alien 
power,  or  by  reason  of  spontaneous  imitation,  a  foreign  legal  insti- 
tution is  introduced  in  the  law  of  a  people,  the  alien  element  thus 
incorporated  may,  as  the  case  may  be,  either  perish,  or  be  gradually 
eliminated,  or  lastly,  be  assimilated  by  an  internal  series  of  changes 
which  develops  a  new  channel  of  imitation.  But  the  phenomena 
which  constitute  the  true  material  of  the  history  of  comparative 
law,  those  in  respect  to  which  the  phenomena  of  imitation  have 
only  a  subordinate  interest,  like  the  detail  of  a  picture,  or  a  con- 
dition of  disease  for  knowledge  of  a  condition  of  health,  are  the 
facts  of  normal  development  which  follow  free  of  outside  influences. 
From  an  observation  of  these  facts  as  minute  and  as  extended  as 
possible,  we  may  hope  to  derive  at  once  a  series  of  partial  laws, 
and,  perhaps,  in  time  a  general  formula  which  will  embrace  them 


58  INTRODUCTION  [§  3,  2. 

all.  Of  course,  we  have  not  yet  attained  a  general  principle  which 
may  be  here,  as  in  other  scientific  studies,  the  crown  and  conclu- 
sion of  a  mass  of  isolated  discoveries.  But  it  may,  we  think,  be 
regarded  as  demonstrated,  that  there  are  a  number  of  special  laws 
of  evolution. 


Space  does  not  permit  a  discussion  of  the  details  of  all  the  points 
raised  by  M.  Tarde.  We  may,  however,  offer  certain  general  ob- 
servations. First,  it  appears  to  us,  that  M.  Tarde  in  many  connec- 
tions has  claimed  too  easily  to  have  proved  the  nonexistence  of  a 
determinate  chain  of  evolution  where  he  thinks  he  can  show  that  it 
has  not  operated  in  this  or  that  particular  case.  Social  laws  do  not 
always  have  the  clearness  of  mathematical  laws.  Practical  appli- 
cation of  these  laws  may,  in  being  masked  or  paralyzed  by  an  in- 
finitude of  circumstances,  prevent  their  being  discerned.  M. 
Tarde  appears,  also,  to  forget  in  his  discussions,  that  the  absence 
in  a  given  group,  of  vestiges  of  a  phase  long  since  overshot  by  civili- 
zation is  a  regrettable  accident,  but  natural  enough ;  and  that  it 
does  not  outweigh  all  the  probative  force  of  other  positive  vestiges 
of  the  same  phase  found  in  numerous  other  societies.  Such  a  fact 
does  not  any  more  hinder  a  general  conclusion,  than  it  would,  for 
example,  in  linguistics  or  geology.  Finally,  we  may  be  permitted 
to  ask,  if,  for  the  purpose  of  a  discussion  of  problems  which  involve 
all  the  observed  facts  past  and  present  of  human  society,  the  mate- 
rial assembled  by  ]M.  Tarde  is  not  somewhat  scanty  ? 

So,  with  reference  to  the  inductions,  from  our  point  of  view  per- 
fectly legitimate,  drawn  from  knowledge  of  primitive  societies  and 
from  existing  customs  of  peoples  less  advanced  than  ourselves, 
M.  Tarde  speaks  of  "  a  small  number  of  anecdotes,  always  the 
same,  drawn  from  various  American,  African,  or  Oceanic  tribes, 
which  have  made  the  round  of  the  sociological  press,  and  which, 
for  a  long  time,  will  continue  the  operation  under  various  labels." 
It  is,  indeed,  not  necessary  to  say,  and  the  explanation  is  sufficiently 
clear,  why  always  the  same  decisions  are  cited  in  the  hand-books 
of  the  law,  and  the  same  experiments  entered  in  the  compendia  of 
physics.  In  the  first  place,  it  is  very  commendable  to  invoke 
the  most  convincing  examples  which  have  already  been  discovered  ; 
next,  it  is  the  height  of  modesty  that  the  books  which  are  not  orig- 
inal should  freely  copy  one  from  another.  But  in  resorting  to 
such  books,  it  is  not  implied  that  no  other  materials  are  in  exist- 
ence.    The  student  would  err  who  supposed  that  there  are  no  other 


§  3,  2.]  THE    ORIGIN   OF   LEGAL   INSTITUTIONS  59 

decisions  than  those  cited  in  his  ]\Ierlin ;  and  the  candidate  for 
the  bachelor  degree  would  make  a  mistake  if  he  thought  that  no 
other  experiments  had  ever  been  made  than  those  entered  in  his 
paper.  But,  holding  strictly  to  the  literature  of  comparative  law, 
M.  Tarde,  without  resorting  to  the  general  works  on  sociology, 
will  be  able  to  find  some  more  anecdotes  either  in  the  excellent 
"  Zeitschrift  fiir  vergleichende  Rechtswissenschaft,"  published 
since  1878  under  the  direction  of  Franz  Bernhoft,  Georg  Cohn, 
and  Josef  Kohler  ;  or  again  in  the  numerous  studies  of  all  kinds  and 
shapes  of  Kohler;  and  again,  for  example,  in  the  considerable 
collection  of  concrete  references  assembled  since  some  years  with 
great  patience  by  a  colleague  of  M.  Tarde  —  Judge  Post  of 
Bremen ;  thus,  from  a  geographical  poiat  of  view,  in  the  700 
pages  of  his  "  Afrikanische  Jurisprudenz,"  or,  from  a  systematic 
standpoint,  in  his  "  Grundriss  der  ethnologischen  Jurisprudenz." 

And  if  M.  Tarde  speaks  in  this  manner  of  the  researches  relating 
to  the  existing  customs  of  savage  peoples  of  the  present  day,  we 
may  doubt  whether  his  information  is  more  complete  in  that 
which  concerns  the  able  inquiries  made  in  our  time  into  the  his- 
tory of  the  past.  There,  also,  he  takes  the  conclusions  of  elemen- 
tary books  of  second  and  third  hand  as  the  sum  of  science ;  and 
he  is  astonished  that  he  finds  so  little.  A  passage  from  the  author 
has  it  that  in  the  renascence  of  historical  legal  studies  at  first 
"  only  Roman  law  was  investigated  historically  from  its  sources"  ; 
and  then  was  followed  by  the  Egyptian  and  Assyrian  law, 
and  then  again  only,  it  seems,  by  "  similar  researches  into 
Indo-European  and  Semitic  antiquities,  the  Germans,  Slavs, 
Persians,  and  Celts,  as  well  as  the  ]\Iussulmans,  the  Hebrews," 
etc.  This  suffices  to  show  a  somewhat  superficial  notion  of  the 
magnificent  erudition  and  critical  investigation  first  made  in  our 
age  in  Germanic  legal  history,  and  perhaps  rather  than  in 
Roman  law;  which  movement  of  research  has  since  spread  to 
Slavic,  Hindu,  Greek,  and  Hebrew  law,  and  has  extended  still 
more  tardily  to  Egyptian  and  Assyrian  law.  The  very  good  book 
of  ]M.  Dareste  ("Etudes  d'histoire  du  droit"),  which  is  the  most 
solid  and  the  best  of  those  to  which  he  has  appealed,  points  out  a 
whole  literature  which  he  appears  scrupulously  to  have  avoided. 

This,  we  believe,  is  the  great  defect  of  the  book,  and  is  the 
general  explanation  of  the  defective  solutions  in  which  it  results. 
Being  inclined  by  nature  more  to  abstract  reasoning  than  to  sys- 
tematic observation,  ^I.  Tarde  has  treated  almost  exclusiv.ely,  by 
a  process  of  reasoning,  questions  which  depend  entirely  on  obser- 


60  INTRODUCTION  [§  3,  2. 

vation,  and  for  which  personal  observation  remains  more  indis- 
pensable than  anywhere  else ;  because  the  effort  to  sum  up,  and  to 
classify  positive  facts,  is  still  liable  to  disregard  what  has  already 
long  since  been  recorded  in  numerous  collections,  as  is  the  case 
for  the  greater  part  of  the  other  sciences  of  observation.  We  will 
give  a  final  example  of  this,  which  seems  to  us  to  be  striking. 

]\I.  Tarde  speaks  of  the  wonderful  similarity  observed  by  M. 
Seignette  ("Code  musulman  par  Khalil")  between  the  customs  of 
the  pre-Islamitic  Arabs  and  those  of  the  Romans  at  the  time  of 
the  Twelve  Tables  —  absolute  paternal  power,  perpetual  tutelage 
of  females,  the  will,  inheritance  and  tutelage  of  the  agnates,  patron 
and  client,  testamentary  tutelage,  nexum,  pignoris  capio,  noxal 
abandonment,  retaliation,  composition,  etc.  He  finds  here,  as 
always,  the  influence  of  imitation,  and  that  "if  we  recall  the 
proximity  of  Arabia  and  India  where  similar  customs  have  pre- 
vailed .  .  .  there  is  no  difficulty  in  explaining  these  resemblances 
by  imitative  action."  It  is  easy  to  understand  how  one  so  adept  in 
the  doctrine  of  imitation  may  heroically  support  the  similarity  be- 
tween the  legends  of  the  Zulus  and  our  children's  tales,  by  supposing 
an  importation  of  these  stories  by  merchants  and  European  sol- 
diers who  on  the  whole  were  more  occupied  with  the  destruction 
and  spoliation  of  the  natives  than  with  the  recital  to  them  of  the 
Ass's  Skin  and  Little  Poucet.  But  this  is  an  affirmation,  and  not 
a  demonstration.  The  method  of  science  proceeds  otherwise. 
In  order  to  ascertain  if  the  similarity  between  the  laws  of  Rome 
and  pre-Islamitic  customs  is  derived  or  not  by  imitation  from  a 
primitive  system  of  law  common  to  the  Romans  and  the  Hindus, 
a  scientific  method  of  inquiry  will  discover  if  the  same  institutions 
existed  among  the  Hindus  as  among  the  Romans,  on  one  hand,  and 
if,  on  the  other  hand,  they  are  found  among  the  founders  common 
to  the  two  races,  before  their  separation.  Having  determined  for 
a  certainty  that  they  exist  among  the  Romans,  and  not  among 
the  Hindus ;  or,  again,  that  they  exist  among  both  Romans  and 
Hindus,  but  that  they  developed  among  them  only  after  the 
separation,  it  may  not  only  be  supposed,  but  it  will  be  proved,  that 
the  first  institutions  have  arisen  independently  under  the  influence 
of  identical  causes  among  the  early  Arabians  and  the  Romans ; 
that  the  second  have  had  the  same  kind  of  origin  among  the  Hin- 
dus and  Romans ;  and  that  those  facts  make  very  questionable 
any  explanation  of  imitation  for  those  cases  where  the  impossibility 
of  such  a  theory  cannot  be  directly  shown. 

There,  as  in  many  other  places,  the  error  of  M.  Tarde  proceeds 


§  4.]  UNIVERSAL   COMPARATIVE    LAW  .61 

from  this,  that  he  wishes  to  treat  a  science  of  observation  by  other 
methods  than  those  of  the  sciences  of  observation.  This  does  not 
prevent  an  attentive  reading  of  the  book,  which  is  still  useful  in 
that,  by  its  very  character  of  opposition,  it  gives  to  the  students, 
who  in  future  will  pursue  these  studies,  a  good  motive  to  test 
their  own  ideas.  But  since,  as  we  think,  he  has  failed  to  shake 
seriously  any  of  the  propositions  of  the  doctrines  which  he  combats, 
his  theory  is  very  far  from  bringing  a  revolution,  as  some  enthusi- 
asts have  too  hastily  proclaimed.^ 

Section  4 
SCIENXE   OF   UNIVERSAL   COMPARATIVE   LAW  2 

1.  It  is  recognized,  now,  that  the  study  of  positive  law  of  all 
peoples,  and  in  all  ages,  is  scientifically  possible  and  necessary. 
Likewise,  it  is  admitted  that  an  examination  of  primitive  and  em- 
bryonic stages  is  indispensable  for  full  understanding  of  later 
phases  of  growth ;  and  that  comparison  of  different  ideas  is  the 
best  method  to  determine  the  character  and  tendencies  of  legal 
evolution.  There  is  implanted  in  the  minds  of  all  scholars  a 
belief  in  the  propriety  and  importance  of  experiential  investigation 
in  all  sciences,  and  especially  in  that  of  the  law.  The  only  objec- 
tions which  may  be  urged  against  this  method  relate  to  the  intrinsic 
difficulty  of  the  investigation  and  the  limits  assigned  to  it ;  not  by 
virtue  of  a  preconceived  idea  of  dogmatic  order  of  the  materials, 
but  on  account  of  the  means  and  efforts  which  must  be  employed. 
A  complete  and  universal  study  of  juridical  phenomena,  in  truth, 
is  a  scientific  ideal  which  we  are  able  and  ought  to  seek,  but  which, 
for  reasons  easy  to  find,  can  never  be  fully  attained.  How  many 
peoples  there  are  recorded  which  have  disappeared  leaving  only 
the  scantiest  traces  of  their  history,  or  perhaps  nothing !  How 
many  documents  irreparably  injured,  or  hidden,  or  indecipherable  ! 
To  what  extent  has  the  law  been  observed  simply  as  custom,  with- 

1  [Mr.  Tarde  replied  to  this  re\iew  in  a  letter  to  the  "Revue  Philoso- 
phique"  (December,  1893,  pp.  G23-629,  and  republished  in  the  preface 
to  later  editions  of  his  "Transformations  du  droit,"  Gth  ed.  1909,  pp.  i- 
\-iii).  Professor  Girard  rejoined  in  "Revue  Philosophique "  (1894,  Vol. 
XIX,  pp.  210-212)  and  republished  in  his  "Melanges  de  droit  Romain," 
Tome  I,  pp.  429-432.] 

2  [By  Giorgio  del  Vecchio,  former  professor  at  the  University  of  Messina, 
and  now  professor  of  Philosopliy  of  Law  at  the  University  of  Bologna; 
translated  by  Albert  Kocourek  from  the  French  version  of  M.  Rene  Francez 
("Extrait  de  la  Revue  Critique  de  Legislation  et  de  Jurisprudence," 
Paris,  1910).] 


62  INTRODUCTION  [§  4. 

out  other  sanction,  and  without  written  form !  The  difficulty  of 
knowing  at  this  time  with  precision  of  the  legal  systems  of  peoples 
which  did  not  attain  an  elementary  elaboration  of  law,  either 
legislatively  or  scientifically,  is  manifestly  very  great,  and  when 
we  deal  with  ages  far  removed,  is  frequently  insurmountable. 
Especially,  knowledge  of  origins,  and  of  prehistorical  develop- 
ments does  not  appear  to  be  easy  to  obtain,  except  for  him  who 
ignores  the  special  conditions  of  an  investigation  of  this  kind,  and 
is  disposed  to  supph%  in  default  of  documents  and  critical  proofs, 
the  products  of  imagination,  or  dogmatic  credulities.  Neverthe- 
less, the  difficulties  and  the  compass  of  the  matter,  instead  of 
causing  a  slothful  or  skeptical  abandonment  of  the  subject,  ought 
rather  to  induce  more  diligent  efforts ;  since  the  infinite  richness  and 
variety  of  the  phenomena  of  nature  are  a  motive  of  zeal,  and  not 
of  discouragement  to  the  naturalist  who  seeks  to  discover  its  laws. 


To-day,  notwithstanding  considerable  progress  due  to  the  labors 
of  a  few  indefatigable  scholars,  knowledge  of  universal  juridical 
phenomenology  is  rather  incomplete  and  imperfect.  This,  it  may 
incidentally  be  remarked,  is  the  cause,  and  partially,  also,  the 
effect  of  the  complete  absence  of  this  subject  in  the  programs  of 
study.  In  this  state  of  things,  there  being  a  lively  and  profound 
belief,  more  or  less  clearly  defined,  of  the  necessity  of  this  study, 
it  is  not  astonishing  that  its  want  makes  itself  felt  indirectly. 
Its  absence  is  the  cause  of  disorders  and  evils  which  disadvanta- 
geously  affect  the  system  of  studies  and  the  economy  of  thought. 

That  which  is  understood  as  sociology,  frequently  is  only  a 
collection  of  experienced  facts  which  logically  ought  to  appertain 
to  the  science  of  universal  comparative  law,  and,  in  a  larger  sense, 
to  juridical  science  from  which  these  facts  are  excluded  only  by 
virtue  of  a  too  narrow  conception  which  it  still  supports.  Those 
institutions  and  those  phenomena  of  social  life,  which,  considered 
from  a  certain  stage  of  evolution,  or  under  a  like,  special  aspect 
better  known,  show  themselves  unmistakably  to  be  of  a  juridical 
nature,  are,  on  the  contrary,  rejected  as  beyond  the  "official" 
scope  of  juridical  science ;  since  they  appear  in  a  more  primitive 
form,  among  peoples  less  civilized,  or  even  in  different  civiliza- 
tions. For  example,  a  work  on  the  parental  and  patrimonial 
regime  of  the  Papuans  or  the  Bogos,  and  perhaps  even  of  the 
Aztecs  or  the  Koreans  will  have  little  chance  of  consideration  by 
the  jurists  who  dislike  to  look  beyond  the  horizon  of  the  tradi- 


§  4.1  UNIVERSAL   COMPARATIVE    LAW  63 

tional  culture.  At  the  same  moment,  they  easily  take  refuge  in 
that  collection,  often  chaotic,  of  facts  and  conjectures,  which  con- 
stitutes what  is  called  sociology,  and  which  in  its  defective  sys- 
tematization  bears  precisely  the  mark  of  the  imperfections  of 
contemporary  culture.  The  truth  is  that  the  only  sociology  having 
a  reason  for  existence  is  one  which  treats  the  rides  of  method  com- 
mon to  different  sciences,  from  observation  of  human  facts. 

We  shall  show  here,  briefly,  what  these  rules  are  in  connection 
with  the  law,  and  how  they  are  able  to  accord  and  harmonize,  in  a 
coherent  program,  as  well  with  the  science  as  with  the  philosophy 
of  law. 

2.  We  must,  first  of  all,  proceed  from  the  principle  that  all  posi- 
tive law  whatsoever,  and  however  it  may  appear  in  the  order  of 
phenomena,  is  a  natural  fact ;  that  is  to  say,  determined  by  suf- 
ficient causes,  and  connected  with  all  other  aspects  of  reality.  .  .  . 
It  is  necessary  clearly  to  understand  the  relativity  of  positive  law, 
in  order  that  a  phenomenon,  and  even  a  general  phenomenon,  will 
not  be  confused  with  the  law  or  with  the  criterion  of  valuation  to 
which,  logically,  the  reality  is  subordinate.  .  .  , 

From  any  such  principle  it  follows  at  once  that  no  juridical 
institution  is  to  be  regarded  as  a  prototype  of  others.  All  without 
exception  ought  to  be  equally  examined  and  analyzed  in  the 
historical  setting  which  produced  them.  For  the  same  reason  no 
institution  should  be  put  aside  or  regarded  as  unworthy  of  scientific 
investigation.  All  undervaluation  in  these  matters  is  as  unjusti- 
fiable as  all  over-preference.  Thus,  as  Post  remarks,  a  feeling  of 
revulsion  because  a  people  live  without  marriage,  practice  human 
sacrifices  or  cannibalism,  or  burn  sorcerers  and  witches,  is  without 
value  in  the  solution  of  ethnological  problems,  but  rather  diverts 
attention  from  the  search  for  the  causes  of  these  phenomena.^  Who- 
ever maintains  that  popular  customs  and  beliefs  are  devoid  of 
meaning  shows  that  he  is  not  qualified  for  this  study.  Against 
the  judgment  of  Cicero  ^  who  declared  the  law  of  all  peoples, 
strangers  to  Rome,  "poene  ridiculum,"  we  may  urge  the  more 
profound  saying  of  Spinoza  ^  —  "  non  ridere,  non  lugere,  neque 
detestari,  sed  intelligere." 

Another  consequence  of  the  principle  stated  is  the  necessity  of 
not  neglecting  the  origins  and  the  primitive  phases  of  institutions 
which  we  do  not  discover  as  completely  formed  and  de^'eloped. 
If  it  is  admitted  that  in  the  empirical  order  of  things,  everything 

'  [See  Section  2,  supra,  p.  36.]  ^''T>e  Orat."  1,  1,  c.  44. 

3  "Tract.  Polit."  c.  1,  Sec.  4. 


64  INTRODUCTION  [§  4. 

results  from  a  cause,  and  that  nothing  happens  without  sufficient 
factors  to  produce  it,  then  we  shall  be  obliged  in  the  study  of  all 
juridical  institutions  to  take  account  of  their  antecedents.  And 
the  further  back  we  go  into  the  knowledge  of  these  antecedents, 
the  better  we  shall  attain  a  complete  notion  of  the  institution. 
Comparison  of  the  different  phases  of  its  growth,  of  the  changing 
aspects  assumed  accordmg  to  circumstances,  is  necessary  for  a 
clear  understanding  of  its  present  situation.  For  this  purpose, 
the  most  valuable  information,  in  fact,  is  furnished  by  its  original, 
its  rudimentary,  and  lowest  forms  of  development,  which  to  a 
superficial  observer  would  appear  as  of  no  importance.  For  this 
reason  it  is  also  necessary  to  state  that  each  product  of  evolution, 
however  advanced,  sums  up  all  earlier  forces.  The  law  of  any 
people  in  all  stages  retains  the  signs  and  residues  of  precedent 
phases  of  growth,  however  remote.  Juridical  rules  and  beliefs  of 
the  ages  past  survive  in  some  sort  in  the  present ;  they  are  never 
completely  lost.  But  these  elements  mixed  with  others  super- 
vening later,  and  recast  in  a  new  form,  frequently  escape  the 
observer.  .  .  . 

A  survival,  unimportant  though  it  may  seem,  may  throw  an 
unexpected  illumination  over  a  mode  of  life  which  has  disappeared 
from  view.  A  rare  form  preserved  by  unconscious  tradition,  a 
custom  profoundly  rooted  in  spite  of  its  discord  with  written  law, 
may  permit  an  entire  reconstruction  of  an  age  which  has  passed 
away.  Such  a  reconstruction  is  notably  rendered  possible  by  the 
frequent  fact  that  a  detail  which  in  a  certain  phase  of  culture  ap- 
pears as  an  anomaly,  may  be  found  in  vigor  in  a  complete  and 
harmonious  system  among  other  peoples  of  lesser  culture. 

3.  The  principle  of  method  above  indicated  has  a  fundamental 
importance.  Nevertheless,  it  is  insufficient  to  constitute  a  science 
of  juridical  phenomena.  It  establishes  the  generic  condition  of  an 
investigation  of  this  sort  in  so  far  as  it  has  an  empirical  character, 
but  not  its  specific  condition  in  that  its  object  isJ2iridical  phenomena 
as  such.  From  this  arises  the  necessity  equally  fundamental  of 
determining  from  a  logical  standpoint  what  is  to  be  understood 
by  law,  and  upon  what  elements  the  juridical  character  of  a  phe- 
nomenon depends.  .  .  . 

This  inquiry,  of  course,  in  its  nature,  goes  beyond  an  empirical 
investigation  which  as  such  seeks  to  assemble  special  and  con- 
crete juridical  facts,  and  not  to  discover  a  logical  universal  form. 
.  .  .  Let  it  suffice  to  reaffirm  that  this  formal  idea  is  a  necessary 
condition  to  experience  of  juridical  facts.     It  is  recognized  in  all 


§  4.]  UNIVERSAL   COMPARATIVE    LAW  65 

phenomena  of  law  but  always  in  a  special  attitude,  with  a  content 
variable  and  logically  accidental.  On  the  contrary,  it  compre- 
hends and  limits  in  equal  measure  all  possible  cases  in  the  juridical 
sphere,  surpassing,  therefore,  by  far,  the  facts  verified  in  the 
domain  of  experience.  Recognition  of  this  transcendental  condi- 
tion of  juridical  experience  does  not  diminish  the  value  of  experi- 
ence itself.  Rather,  it  puts  experience  in  its  true  light  and  guaran- 
tees its  authority  in  its  own  field.  In  reality,  we  are  able  and 
ought  to  borrow  from  experience  as  an  inexhaustible  fountain, 
knowledge  of  the  content  that  law  has  provided  in  space  and  time. 
From  what  has  been  just  said  nothing  which  credits  the  study  of 
historical  facts  in  which  a  juridical  character  is  found,  is  an  ob- 
struction to  going  back  in  turn  to  the  formal  idea  of  which  facts  are 
only  the  applications  and  illustrations. 

4.  In  agreement  with  these  fundamental  criteria,  an  objective 
study  and  comparison  of  juridical  phenomena  may  be  attempted. 
We  may  therefore  set  up  an  autonomous  science  which  may  be 
called  the  "science  of  universal  comparative  law."  But  in  order 
thoroughly  to  apprehend  the  basis  and  object  of  this  comparison, 
it  is  necessary  to  return  to  the  principle  which  dominates  its  ma- 
terials —  the  profound  unity  of  human  nature  of  which  the  law  is  a 
necessary  manifestation.  We  find  here  also  one  of  the  premises  of 
empirical  investigation,  the  results  of  which  however  confirm  and 
illustrate  this  unity,  but  in  reality  rest  upon  it  and  draw  from  it 
its  scientific  character. 

Every  man  bears  within  himself  the  principle  of  law.  Every 
mind  possesses  the  elements  with  which  to  elevate  itself  to  its 
proper  empirical  position  as  a  personality  whence  it  may  har- 
monize ethically  with  the  personality  of  others.  It  is  essential 
not  to  lose  sight  of  this  eternal  principle  of  justice  which  is  firmly 
anchored  in  the  depths  of  the  human  mind,  in  order  that  the 
manifold  series  of  facts  which  issue  from  it,  and  which  observation 
attempts  to  discover,  may  be  thoroughly  understood. 

Thus,  we  recognize  at  once  that  the  psychological  aptitude  to 
distinguish  in  a  certain  measure  the  just  and  the  unjust,  and  to  feel 
and  to  conceive  juridical  truth  is  not  the  possession  of  a  few  men 
only,  but  belongs  to  all  persons.  Again,  law  is  not  an  isolated  fact 
which  alone  is  encountered  among  this  people  or  in  that  epoch  ;  but 
everywhere  that  men  are  found,  there  are  discovered  traces  of  an 
ethical  system,  and  of  a  law  which  reflects  a  common  activity  of 
man's  spirit. 

On  the  other  hand,  in  the  same  way  that  the  human  mind  devel- 


66  INTRODUCTION  [§  4. 

ops  slowly  from  the  most  obscure  forms  of  knowledge  to  clear 
ideas,  so  also  the  law  grows  from  a  phase  almost  unconscious,  and, 
little  by  little,  attains  the  stage  of  reflection.  An  obscure  instinct 
and  a  vague  intuition  of  their  objects  is  sufficient  to  generate  among 
men  organizations  and  institutions  which  seem  to  indicate,  so 
complex  is  their  structure,  profound  and  mature  thought.  They 
are  not,  however,  less  a  product  of  mind  and  intelligence,  although 
created  spontaneously,  and,  as  it  were,  unconsciously.  .  .  . 

The  unity  of  the  human  mind,  in  which  the  law  has  its  source, 
does  not,  in  general,  spring  solely  from  the  continuity  and  univer- 
sality of  law.  A  series  of  identities  and  resemblances  which  are 
met  in  the  positive  law  of  all  peoples  is  another  special  proof  of  this. 
The  prejudice  which  for  a  time  dominated,  especially  under  the 
influence  of  the  Historical  School  according  to  which  each  people 
necessarily  has  a  system  of  law  peculiar  to  it,  which  is  a  part  of  that 
people  and  fits  its  own  conditions,  and  which  as  a  result  would  be 
different  among  other  peoples,  compelled  a  broader  study  of 
juridical  phenomena  to  yield.  This  study  has  already  demon- 
strated for  a  certainty  that  a  large  part  of  fundamental  juridical 
principles  and  institutions  is  the  common  heritage  of  all  humanity 
in  all  epochs.  The  modern  specialists  of  comparative  law  insist 
upon  this  proposition  ^  because  they  well  understand,  without 
expressly  saying  it,  that  this  science  has  its  true  reason  for  existence 
in  the  substantial  unity  of  the  human  mind  which  is  revealed  in 
the  law. 

The  fact  that  juridical  institutions  are  subjected  to  a  process  of 
evolution  may  appear  to  negative  this  unity.  On  the  contrary, 
it  provides  a  new  confirmation ;  since  evolution  itself  manifests  a 
general  attribute  of  humanity  which  is  realized  in  an  analogous 
manner  among  different  peoples  widely  separated  in  space  and  time, 
and  having  no  connection  with  each  other ;  where,  otherwise,  to 
explain  these  phenomena,  it  would  be  necessary  to  revert  to  the 
hypothesis  of  a  common  origin  of  the  races  which  in  many  cases  is 
not  verified,  and  where,  for  the  rest,  it  would  be  insufficient  to 
justify  the  analogies  observed.  The  same  evolution  governs  the 
general  expression  of  the  ethico-juridical  system  and  special 
institutions  (such  as  property,  the  family,  etc.).  They  pass  through 
a  series  of  determinate  stages  in  a  definite  order  and   frequently 

1  Post,  "Bausteine,"  i  (1880),  pp.  14,  54,  "Ueb.  die  Aufgaben  einer  al- 
gem.  Rechtswiss."  (1891),  pp.  17-19  ;  Kohler,  [Introduction,  See.  1,  of  this 
volume,  and]  "Ueber  die  Methode  der  Reehtsvergleichung "  in  Griinhut's 
Z.  (1901),  p.  274  seq.;  Dareste  *!' Etudes  d'histoire  du  droit,"  V  serie 
(2<ied.  1908),p.  xiiiseg. 


§  4.]  UNIVERSAL   COMPARATIVE    LAW  67 

with  the  most  remarkable  resemblances ;  even  to  the  point  of  the 
smallest  details,  and  among  nations  without  any  historical  associa- 
tion. 

It  is  necessary  to  make  reference  to  another  fact  which  equally 
confirms,  on  last  analysis,  the  principle  advanced,  and,  of  which, 
ordinarily,  the  generality  and  importance  is  not  fully  recognized. 
We  refer  to  the  ease  with  which  juridical  institutions  are  adopted 
by  peoples  other  than  those  among  whom  they  originated.  This 
aptitude  reveals  itself  in  the  same  proportion  as  the  degree  of 
development  to  which  it  applies.  Thus,  it  happens  that  the  laws 
and  even  the  customs  of  the  more  developed  nations  are  nearly 
always  understood  (directly  or  indirectly)  beyond  the  limits  where 
they  originate;  and  are  applied,  frequently,  with  a  great  deal 
more  facility  and  rapidity  than  one  would  suppose  in  places  where 
a  different  law  is  already  established.  In  this  manner,  the  law  of 
each  people  is  able  to  profit  from  elements  elaborated  by  others 
by  renewing  or  reenforcing  itself  through  their  strength,  or  by 
drawing  from  them  partial  adaptations  according  to  the  cir- 
cumstances. The  importance  of  this  fact  which  intervenes  almost 
constantly  in  the  vicissitudes  of  the  law,  and  chiefly  in  its  periods 
of  progress,  will  be  hard  to  exaggerate.  It  implies  that  in  essence 
the  force  of  juridical  institutions,  in  general,  exceeds  the  causes  and 
the  contingencies  which  produce  them ;  for  while  being  always 
determined  by  historical  conditions  their  internal  logic  neverthe- 
less gives  them  an  independent  vitality,  and  renders  them  fit  for 
new  adaptations,  and  a  function  infinitely  greater  than  that 
appearing  at  the  time  of  their  creation.  In  a  word,  the  same  in- 
stitutions may  be  considered  in  an  aspect  other  than  that  of 
historical  contingence ;  they  may  be  regarded  as  expressions  or 
products  of  the  human  mind  ;  and,  we  may  say,  from  an  universal 
point  of  view,  that  they  are  siiperior  to  history. 

It  has  been  observed  with  justice  ^  that  the  Historical  School 
never  offered  a  sufficient  explanation  of  the  reception  of  Roman 
law  in  Germany.  It  is  now  clear  that  this  fact  could  not  have 
been  understood  by  this  school  precisely  because  its  concept  of  the 
historical  and  national  character  of  law  was  too  narrow.  Again, 
it  was  because  of  the  narrowness  of  the  path  on  which  this  school 
operated,  that  it  was  all  the  more  incapable  of  acquiring  the  uni- 
versal notion  of  this  reception,  which  as  has  been  stated  is  encoun- 
tered among  all  peoples  and  in  all  epochs.  Thus  Roman  law  which 
was  received  in  Germany,  on  its  part  received  a  large  number  of 
^  Bechmann,  "Feuerbach  und  Savigny  "  (1894),  p.  15. 


68  INTRODUCTION  [§  4. 

elements  of  Attic  and  other  jMediterranean  law.  We  may  also 
note,  by  way  of  further  examples,  the  reception  of  Hindu  law  in 
Burma,  of  the  law  of  Islam  in  Africa,  of  German  law  among  the 
Slavs  and  Hungarians,  and  more  recently  of  French  law  in  many 
parts  of  Europe  and  in  America ;  ^  without  discussing  the  special 
borrowings,  equally  very  remarkable,  in  private  and  public  law, 
as  for  example,  the  English  parliamentary  system  which  has  spread 
and  is  spreading  among  other  States. 

It  remains  to  bring  to  light  a  capital  fact  which  to  a  certain 
extent  sums  up  the  points  already  made.  In  the  course  of  the 
development  of  law  the  elements  of  general  human  significance 
prevail  over  particular  and  strictly  national  elements  which  mark 
the  inferior  phases  of  this  development.  Special  rules  disappear 
and  make  way  for  more  comprehensive  rules  conforming  to  ra- 
tional and  universal  principles.  In  the  progressive  movement  in 
which  juridical  institutions  of  the  peoples  take  on  a  rational 
and  universal  character,  they  tend  to  coincide.  In  other  words, 
there  comes  about  a  convergence  of  special  developments  which 
establishes  a  more  extensive  coordination  and  a  more  profound 
harmony  among  the  laws  of  different  nations.  This  tendency  is 
only  an  aspect  of  the  development  of  the  human  spirit ;  likewise, 
at  the  same  time,  it  has  a  character  of  spontaneity  and  necessity ; 
and  it  does  not  depend  on  external  circumstances  or  influences. 
Nevertheless,  an  explanation  of  this  tendency  is  facilitated  and  its 
realization  is  favored  in  the  system  of  facts  by  the  aptitude  already 
noticed  with  which  juridical  ideas  are  communicated  among 
different  peoples  —  an  aptitude  which  itself  presupposes  a  definite 
unity  of  human  nature  without  which  it  would  not  be  possible. 
The  conjunctures  which,  in  consequence  of  diverse  contingencies, 
but  with  increasing  frequency,  occur  among  different  groups  are  an 
excellent  means  of  recognizing  that  the  essence  of  the  human  spirit 
is  always  identical,  and  thus  of  establishing  connections  which  are 
based,  at  least  in  part,  on  a  recognition  of  this  unity  of  nature. 

Thus,  whether  by  the  internal  elaboration  which  goes  on  in  the 
bosom  of  the  law  of  each  people,  or  whether  by  the  borrowings 
which  occur  among  different  peoples,  we  arrive  degree  by  degree  to 

^  CJ.  Bernhoft,  "Ueber  Zweek  und  Mittel  der  vergleieh.  Reehtswiss." 
(Z.  f.  V.  R.,  1878),  p.  27;  Post,  "Ueber  die  Aufgaben  einer  allg.  Reehts- 
wiss."  p.  22  ;  Kohler,  "Ueber  die  Methode  der  Reehtsverg."  p.  279.  With 
reference  to  the  different  kinds  of  transmission  and  imitation,  direct  or 
indirect,  conscious  or  unconscious,  see  Freeman,  "Comparative  Politics," 
2d  ed.,  1896;  Emerico  Aviari,  "Critica  di  una'scienza  delle  legislazioni 
comparate"  (1857),  pp.  53-69;  Vadala-Papnie,  "D'  una  scienza  delle 
legislazioni  comp."   (ext.  Circolo  Giuridico,  Palermo,   1882). 


§  4.]  UNIVERSAL   COMPARATIVE    L.\W  69 

a  realization  of  universal  juridical  criteria  sufficient  to  govern  all 
humanity.  In  a  word,  there  is  established  and  perfected  an 
ensemble  of  common  principles,  a  societas  hiiviani  generis  based  on 
laws  inherently  natural  to  all  persons.  That  which  rationally  is  a 
demand  a  priori  is  realized  in  history  by  a  sluggish  process  operat- 
ing amidst  the  most  diverse  and  complicated  changes. 

It  is  precisely  the  mission  of  the  science  of  universal  compara- 
tive law  to  collect  and  arrange  the  phases  of  this  process  which 
reveals  the  achievement  of  an  end  toward  which  human  reason 
tends.  Therefore,  it  ought  itself  to  be  an  efficacious  instrument 
for  the  progressive  unification  of  the  law.  This  science  is  distin- 
guished from  legal  history  in  the  narrow  sense,  and  dominates  the 
particulars  of  the  law,  just  because  its  object  has  an  universal 
character.  It  does  not  embrace  the  data  of  juridical  experience 
as  simple  events  which  depend  peculiarly  on  special  causes,  but 
makes  use  of  them  so  far  as  they  represent,  in  a  definite  degree,  the 
development  of  the  human  spirit  in  the  form  of  the  law.  The 
point  of  view  which  is  simply  historical  and  clironological  is  thus 
left  behind.  Every  juridical  form  has  the  function  which  belongs 
to  it  by  reason  of  the  idea  which  it  cloaks,  whatsoever  may  be  the 
epoch  or  the  people  where  it  is  presented.  Such  a  criterion,  no 
doubt,  presupposes  historical  knowledge,  but  is  itself  superior  to 
history.  It  permits  the  grouping  of  the  institutions  ancient  and 
modern  of  the  peoples  of  all  parts  of  the  world,  wheresoever  they 
have  realized  the  same  juridical  idea.  Such  an  idea  shows  its 
human  significance  precisely  in  that  it  appears  uniformly  among 
remote  peoples  who  are  strangers  to  each  other,  in  a  form  deter- 
mined by  their  respective  developments. 

In  directing  its  researches  in  this  sense  the  science  of  universal 
comparative  law  follows  and  retraces  the  steps  of  evolution  of  that 
notion  of  law  which  is  found  unified  and  complete  in  pure  reason. 
Two  methods  are  possible  and  in  the  end  lead  to  the  same  result : 
that  the  human  mind  produces  the  law  in  the  system  of  phenomena, 
and  regards  it  in  itself  suh  specie  ceterni;  and  that  it  is  the  same 
need  of  justice  which,  satisfied  partially  and  by  degrees  in  the  course 
of  history,  is  affirmed  categorically  by  conscience  as  an  absolute 
ideal  to  which  the  various  facts  in  the  empirical  order  of  things 
ought  to  adjust  themselves. 

5.  From  what  has  preceded  it  is  easy  to  draw  the  conclusion. 
If  the  science  of  universal  comparative  law  is  set  in  motion  in  the 
domain  of  experience,  and  is  supported  by  knowledge  of  juridical 
phenomena,  it  is  none  the  less  subjected  to  a  whole  series  of  philo- 


70  INTRODUCTION  [§  4. 

sophical  premises  and  constructions  without  which  it  would  fall 
of  its  own  weight.  While  it  is,  and  ought  to  be,  an  empirical 
science,  yet  it  marks  the  limits  of  the  reconcilement  of  the  science 
and  philosophy  of  law.  The  science  of  law  discovers  in  the  phil- 
osophy of  law  its  principles  and  its  complement ;  just  as,  in  its 
turn,  the  philosophy  of  law  may  and  should  profit  for  the  applica- 
tion and  verification  of  its  criteria,  by  that  which  science  has 
brought  to  light.  ... 


I 


PART   I 
LAW   AND   THE   STATE 

Chapter   I 

FORMS   OF   SOCIAL   ORGANIZATION 
By  J.  W.  Powell 

Chapter   II 

EVOLUTION   OF   THE   STATE 
By  Josef  Kohler 

Chapter    III 

OMNIPOTENCE   OF   THE   ANCIENT   STATE 
By  Fustel  De  Coulanges 

Ch.\pter    IV 
CHIEFTAINRY   AND    KINGSHIP 

Section  1.  Cultural  Importance  of  Chieftainrt 
By  Josef  Kohler 

Section  2.  Authority  of  the  King 
By  Fustel  De  Coulanges 

Chapter   V 
RELIGION   AND    LAW 

Section  1.  Religious  Origin  of  Ancient  Law 
By  Fustel  De  Coulanges 

Section  2.  Religious  Element  in  Hindu  Law 
By  Henhy  S.  Maine 

Section  3.  Taboo  as  a  Primitive  Substitute  for  Law 
By  Josef  Kohler 


Chapter   VI 
EVOLUTION    OF   CRIMINAL   LAW 

Section  1.  Primitive  Criminal  Law 
By  Ricsard  R.  Cherry 

Section  2.  Development  of  Justice 
By  L.  T.  Hobhouse 

Section  3.  Origin  of  Punishment 
By  Ellsworth  Faris 

Chapter   VII 

THE    FORMS   OF    LAW 

By  Henry  S.  Maine 

Chapter   VIII 

METHODS   OF   THE   LAW'S   GROWTH 
By  Henry  S.  Maine 


Chapter  I 
FORMS   OF   SOCIAL  ORGANIZATION  ^ 

The  officers  of  the  Bureau  have  now  been  engaged  for  many 
years  in  investigating  the  institutions  of  savagery,  and  while 
these  researches  are  far  from  complete  and  many  questions  are 
unsettled  it  seems  desirable,  for  many  reasons,  that  an  outline 
of  certain  conclusions  should  be  published. 

Regimentation  in  sociology  is  the  analog  of  organization  in 
biology.  The  accomplisliment  of  justice  in  institutions  is  the 
analog  of  function  in  the  biotic  realm.  Often  the  terms  organ 
and  function  are  transferred  from  biology  to  sociology.  This 
double  use  of  terms  is  a  very  general  device  of  speech,  and  is  both 
legitimate  and  useful  when  properly  understood ;  but  the  terms 
organ  and  function  are  tropes  in  sociology,  and  must  be  so  under- 
stood lest  they  should  lead  astray.  By  regimentation  is  meant 
the  grouping  of  people  by  institutional  bonds,  while  the  accom- 
plishment of  justice  is  the  social  function  or  office  which  a  confed- 
eration or  group  of  people  performs. 

Two  radically  distinct  methods  of  regimentation  are  found  extant 
in  the  world  and  recorded  in  the  history  of  the  past ;  these  may  be 
known  as  the  tribal  system  and  the  national  system.  By  the 
tribal  system  men  are  organized  on  thebasis^  of  lonship,  real  or 
artificial.  By  the  national  system  men  are  organized  on  the  basis 
of  territory.  Thus  kinship  groups  are  found  in  tribal  society, 
territorial  groups  in  national  society.  In  history,  transitional 
forms  are  found,  the  most  important  of  which  are  feudal.  Thus 
feudal  society  exhibits  both  methods,  and  forms  a  connecting  link 
in  the  evolution  of  tribal  into  national  government. 

In  savagery  families  are  organized  into  dans^  and  clans  some- 
times into  tribes,  and  tribes  into  confederacies.  Sometimes 
intervening  units  are  discovered,  but  the  family,  clan,  tribe,  or 

1  [By  J.  W.  Powell.  Reprinted,  by  permissiou,  from  the  15th  Annual 
Report  of  the  American  Bureau  of  Ethnology  (The  Smithsonian  Institu- 
tion).    The  original  title  of  this  study  is  "  On  Regimentation."] 

73 


74  LAW   AND   THE   STATE  [Part  I. 

confederacy  are  always  found.  In  barbarism  families,  gentes, 
tribes,  and  confederacies  are  organized  into  a  hierarchy  of  units, 
and  there  are  sometimes  intervening  units.  The  difference  be- 
tween the  clan  of  savagery  and  the  gens  of  barbarism  is  important 
and  fundamental.  The  clan  is  a  group  of  people  reckoning  kin- 
ship in  the  female  line,  while  the  gens  is  a  group  of  people  reckon- 
ing kinship  in  the  male  line.  Tribes  reckon. kinship  in  the  male 
or  female  line  together  with  affinity,  and  adopted  members  of  the 
tribe  are  given  artificial  kinship.  When  tribes  unite  in  confedera- 
cies, artificial  kinship  is  established  as  a  legal  fiction,  and  the  mem- 
bers of  one  tribe  know  the  members  of  another  tribe  and  address 
them  by  kinship  terms.  The  manner  in  which  this  kinship  organi- 
zation is  elaborated  varies  greatly  from  tribe  to  tribe.  Radical 
differences  exist  between  the  tribes  of  savagery  and  the  tribes  of 
barbarism.  In  barbarism  patriarchies  are  found  as  concomitant 
with  nomadic  tribes,  but  in  savagery  the  patriarchy  does  not  exist, 
nor  are  savage  peoples  properly  nomadic,  as  nomadism  begins 
with  the  domestication  of  animals  and  higher  agriculture. 

The  plan  of  organizing  states  into  units  of  different  orders  so 
as  to  form  a  hierarchy  of  groups  is  denominated  regimentation, 
and  it  can  be  made  cleiar  by  explaining  primitive  regimentation. 

With  national  states,  territorial  organization  obtains.  People 
are  divided  into  bodies  or  groups  by  districts.  No  two  nations 
are  organized  in  precisely  the  same  manner ;  though  the  general 
plan  is  the  same  —  i.e.,  by  territorial  boundaries  —  the  specific 
manner  in  which  the  organization  is  worked  into  detail  is  ever 
variable.  It  is  impossible  here  to  set  forth  all  these  various 
methods.  It  will  be  sufficient  to  take  some  one  nation  and  explain 
its  organization  as  a  type,  and  for  this  purpose  the  Government 
of  the  United  States  is  chosen. 

The  grand  unit,  or  the  nation,  is  divided  into  states  and  inchoate 
states,  or  territories.  States  are  divided  into  counties,  and 
counties  are  divided  into  townships,  sometimes  called  towns.  In 
addition  to  the  hierarchy  of  units  thus  enumerated,  there  are  cities 
and  villages,  Avhich  are  again  divided  into  wards,  and  these  again 
into  polling  districts,  while  other  districts  are  sometimes  found. 
The  various  units  thus  set  forth  are  established  for  executive  pur- 
poses. This  regimentation  is  that  which  obtains  for  executive 
purposes. 

There  is  another  system  of  regimentation  for  judicative  pur- 
poses. In  part,  but  only  in  part,  judicial  districts  coincide  with 
executive  districts,  and  there  are  national  courts,  state   courts, 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATION  75 

county  courts,  and  municipal  courts.  Again,  judicative  functions 
are  differentiated,  as  criminal  and  civil,  and  special  courts  are 
organized  therefor,  while  other  courts  are  organized,  as  railroad 
commissions,  warehouse  commissions,  etc. 

A  third  system  of  regimentation  is  used  for  legislative  pur- 
poses, and  in  this  system  the  districts  correspond  only  in  small 
part  with  those  established  for  executive  and  judicative  purposes. 

A  fourth  system  of  regimentation  is  established  for  operative 
purposes.  The  General  Government  carries  on  works,  states 
carry  on  works,  ct)unties  carry  on  works,  and  cities  and  towns 
carry  on  works. 

Still  a  fifth  system  of  regimentation  is  found,  namely,  that  for 
school  purposes. 

By  the  district  system  thus  briefly  and  imperfectly  elaborated 
the  people  are  organized  or  regimented  into  bodies,  and  special 
functions  are  relegated  to  the  several  units.  These  functions  are 
constitutive,  legislative,  executive,  operative,  and  judicative.  It 
is  by  constitutive  action  that  regimentation  is  accomplished; 
and  it  is  by  regimentation  that  specialization  is  accomplished. 
This  specialization  is  carried  on  to  such  an  extent  in  the  United 
States  that  much  of  the  government  is  local  self-go^•e^nment. 
Every  school  district  has  special  functions,  every  township  special 
functions,  every  county  special  functions,  every  state  special 
functions,  and  every  municipality  special  functions  ;  while  general 
functions  are  exercised  over  all  by  the  Federal  Government.  Thus, 
the  people  of  the  United  States  are  constituted  and  regimented 
into  a  congeries  of  hierarchies  of  units  all  woven  into  one  com- 
plex system  as  the  Government  of  the  United  States,  and  so 
adjusted  in  interdependent  parts  as  to  secure  a  high  degree  of 
specialization. 

In  addition  to  the  governmental  regimentation,  there  is  a  vast 
congeries  of  societies  or  corporations  organized  for  religious,  in- 
dustrial, educational,  and  other  purposes,  all  of  which  constitute 
part  of  the  state  or  nation. 

The  regimentation  of  all  people  is  founded  on  natural  families, 
for  there  are  husbands  and  wives,  parents  and  children ;  but  such 
families  have  lineal  and  collateral  lines  of  kinship  involving  both 
parents.  A  larger  group  than  that  composed  of  parents  and 
children  is  organized  in  the  crudest  society  known.  For  this  pur- 
pose all  of  these  persons  reckoning  consanguineal  kinship  tlirough 
the  female  line  are  regimented  or  organized  in  a  clan.  The  term 
clan  should  always  be  used  to  designate  this  group,  though  it  is 


76  LAW   AND   THE   STATE  [Part  I. 

sometimes  improperly  used  to  designate  other  groups.  The  hus- 
band and  wife  do  not  belong  to  the  same  clan,  but  the  husband 
belongs  to  the  clan  of  his  mother,  while  the  wife  belongs  to  the  clan 
of  her  mother.  It  is  thus  that  the  first  constitutive  unit  of  or- 
ganized society  is  based  on  kinship  reckoned  through  the  female 
line.  The  next  unit  recognizes  kinship  by  affinity,  and  a  number  of 
related  clans  that  intermarry  constitute  the  tribe.  The  term 
tribe  should  always  be  used  in  this  manner.  Curiously  enough 
all  of  the  terms  which  are  used  in  defining  the  units  of  regimenta- 
tion are  often  used  promiscuously,  so  that  clan,  gens,  tribe,  and 
confederacy,  with  many  other  terms  which  are  synonymous,  have 
a  vague  meaning  in  popular  estimation;  but  in  science  we  are 
compelled  to  give  a  definite  meaning  to  fundamental  terms.  A 
clan,  then,  is  a  union  of  persons  w^ho  reckon  consanguineal  kinship 
in  the  female  line ;  a  tribe  is  compounded  of  clans  whose  members 
reckon  kinship  by  consanguinity  and  affinity,  while  a  confederacy, 
which  is  more  or  less  ephemeral,  is  a  union  of  tribes  reckoning 
kinship  as  a  legal  fiction. 

In  the  clan  the  group  is  ruled  by  an  elderman.  But  this 
elderman  may  or  may  not  be  the  oldest  living  male  in  the  clan ; 
to  understand  this  it  becomes  necessary  to  understand  the 
method  of  kinship  naming  in  vogue  in  savagery.  In  the  clan  the 
children  of  one  woman  are  not  only  brothers  and  sisters  to  each 
other,  but  also  "brothers"  and  "sisters"  to  such  of  their  cousins 
as  reckon  kinship  in  the  female  line.  Thus,  if  there  be  three  sisters 
their  children  call  one  another  by  reciprocal  kinship  names,  as 
"brothers"  and  "sisters";  but  if  there  be  three  brothers  their 
children  do  not  call  one  another  by  common  kinship  names,  but 
by  the  kinship  names  determined  through  their  mothers ;  that  is, 
they  call  one  another  cousins.  Among  the  collateral  descendants 
through  the  female  line  there  are  thus  a  number  of  persons  of 
varying  ages  calling  each  other  "brother"  and  "sister,"  though 
the  term  used  always  has  a  further  significance  in  that  it  designates 
relative  age,  so  that  there  is  no  single  term  for  brother,  but  two, 
one  signifying  elder  brother  and  the  other  younger  brother  ;  there 
are  also  two  terms  for  sister,  one  signifying  younger  and  one  elder. 
Now,  it  is  a  law  of  savage  society  that  one  person  must  address 
another  in  the  clan,  in  the  tribe,  and  in  the  confederacy  by  a  kin- 
ship term,  and  as  superior  age  always  gives  authority,  to  address  a 
person  as  elder  is  a  symbol  of  yielding  authority,  and  to  address 
him  as  younger  is  a  symbol  of  claiming  authority.  There  is  a 
curious  modification  of  this  custom  which  is  a  legal  fiction.     If  any 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATIOX  77 

individual  in  the  group  of  brothers  exhibits  superior  abiUty, 
the  clan  or  some  other  constituted  authority  takes  him  out 
of  his  kinship  rank  into  a  higher  rank.  Thus  his  kinship 
name  is  changed;  younger  brother  becomes  "elder  brother," 
and  elder  brother  becomes  "younger  brother"  by  a  legal  fiction; 
or  the  son  may  become  the  legal  "father"  and  the  father  the 
legal  "son." 

A  promotion  in  kinship  is  always  attended  v.'ith  much  tribal 
ceremony.  Among  the  Iroquoian  tribes  it  is  called  "putting  a 
spike  on  the  horns."  In  some  tribes  it  is  called  "adding  a  feather 
to  the  bonnet,"  in  others  it  is  "  adding  a  stripe  to  the  war  paint." 
There  is  often  a  preliminary  course  of  instruction  for  the  ceremony, 
which  is  performed  by  the  priest.  Important  promotions  may  be 
revoked,  and  a  man  who  becomes  unworthy  in  his  office  may  have 
his  "horns"  knocked  off,  or  his  "feathers"  plucked  out,  or  his 
"paint"  washed  away.  In  all  such  cases  he  falls  back  to  his 
natural  kinship  name  and  state. 

Every  clan  in  a  tribe  receives  a  special  name,  which  has  come 
to  be  known  as  its  totem.  Thus  in  a  tribe  there  may  be  a  buffalo 
clan,  a  beaver  clan,  a  cloud  clan,  a  wind  clan,  an  eagle  clan,  and  a 
parrot  clan,  with  others.  Sometimes  the  clan  name  is  the  common 
name  for  all  persons  in  the  clan,  but  more  often  there  is  a  group  of 
names  signifying  some  real  or  mythologic  characteristic  of  the 
animal  or  object  taken  as  the  totem.  For  example,  in  the  buffalo 
clan  there  may  be  a  name  signifying  "sitting  bull,"  another  "stand- 
ing bull,"  still  another  "mad  buffalo" ;  and  names  taken  from  the 
mythology  of  the  buffalo  may  be  used.  The  clan  name  or  totem 
is  used  to  distinguish  the  members  of  one  clan  from  the  members 
of  another.  It  is  never  used  in  the  first  and  second  persons,  but 
always  in  the  third  person.  In  direct  address  the  kinship  name 
expressing  relative  age  must  always  be  used.  Uncles  in  the  clan 
are  addressed  as  "fathers,"  cousins  in  the  clan  as  "brothers"  and 
"sisters." 

If  two  or  more  tribes  unite  in  a  confederacy,  the  first  thing  to 
be  considered  in  the  council  by  which  such  a  confederacy  is  es- 
tablished is  the  kinship  terms  by  which  one  tribe  shall  address 
another.  Where  two  unite,  one  may  be  called  "father"  and  the 
other  "son,"  while  with  the  females  "mother"  and  "daughter" 
are  used.  One  may  be  called  "elder  brother"  and  the  other 
"younger  brother,"  with  "elder  sister"  and  "younger  sister." 
In  compounding  many  tribes  in  this  manner  curious  complica- 
tions arise. 


78  LAW   AND   THE   STATE  [Part  I. 

We  thus  see  that  a  savage  tribe  is  regimented  by  kinship  through 
devices  of  naming,  especially  for  the  clan,  tribe,  and  confederacy, 
and  these  names  are  so  constituted  that  relative  age  is  always 
expressed,  for  the  elder  has  rights  and  the  younger  duties. 

As  in  territorial  organization  special  functions  are  relegated  to 
the  several  units,  so  in  kinship  regimentation  special  functions 
are  relegated  severally  to  the  hierarchy  of  bodies  thus  consti- 
tuted —  that  is,  certain  offices  are  performed  by  the  clan,  others 
by  the  tribe,  and  still  others  by  the  confederacy.  The  possession 
of  property  which  is  exclusively  used  by  the  individual  is  inherent 
in  the  individual,  such  as  clothing,  ornaments,  and  various  utensils 
and  implements.  Individual  property  can  not  be  inherited, 
but  at  death  is  consigned  to  the  grave.  That  property  which 
belongs  to  the  clan,  such  as  the  house,  the  boat,  the  garden,  etc., 
inheres  in  the  corporate  person.  No  article  of  food  belongs  to  the 
individual,  but  is  the  common  property  of  the  clan,  and  must  be 
divided  by  the  authorities  of  the  clan,  often  according  to  some  rule 
by  which  some  special  part  is  given  to  the  person  who  provides 
the  food.  Thus  when  a  hunter  dispatches  a  deer  a  particular 
portion  is  given  to  him ;  other  portions  may  be  given  to  those 
who  assisted  in  its  capture.  All  the  rest  is  divided  according 
to  the  needs  of  the  individuals  of  the  clan.  The  women  gather 
fruits,  seeds,  or  roots.  That  which  is  consumed  at  the  time  is 
divided  by  like  methods,  but  that  which  is  preserved  for  future 
use  sometimes  becomes  the  property  of  the  clan.  The  elderman 
of  the  clan  is  responsible  for  the  training  of  children,  and  it  is  no 
small  part  of  his  duty  daily  to  exercise  them  in  their  games  and 
to  instruct  them  in  their  duties.  Thus  h«  who  enforces  clan 
custom  is  the  same  person  who  instructs  in  clan  custom, 
and  when  councils  of  tribe  or  confederacy  are  held  he  is  the 
representative  of  the  clan  in  such  councils.  The  chief  of  the 
confederacy  is  usually  the  chief  of  one  of  the  tribes,  and  the  chief 
of  the  tribe  is  usually  an  elderman  in  one  of  the  clans.  There  are 
clan  councils,  tribal  councils,  and  confederate  councils,  chief  coun- 
cilors and  eldermen. 

Another  organization,  which  involves  all  civic  relations,  must  be 
explained.  There  is  a  body  of  men,  and  sometimes  women  also, 
who  are  known  as  medicine-men,  or  shamans,  or  sometimes  as 
priests,  who  control  all  religious  ceremonies,  and  who  are  diviners. 
As  disease  is  supposed  to  be  the  w^ork  of  human  or  animal  sorcery, 
it  is  their  function  to  prevent  or  thwart  sorcery.  They  have  the 
management  of  all  ceremonies  relating  to  war,  hunting,  fishinr". 


Chap.  I.]  FORMS   OF   SOCIAL   OKGAXIZATION  79 

and  gathering  the  fruits  of  the  field  and  forest.  It  is  their  office 
to  provide  for  abundant  harvests,  to  regulate  the  climate,  and 
generally  to  divine  and  control  good  and  evil  by  means  of  cere- 
monies. The  principal  shamans  are  men,  but  all  the  people  are 
united  into  shamanistic  societies.  Usually  there  is  some  de- 
termined number  of  these  societies,  over  each  of  which  some 
particular  shaman  presides,  but  he  has  subordinates,  each  one  of 
whom  has  some  particular  office  or  function  to  perform  in  the 
societies.  Sometimes  a  person  may  belong  to  two  or  more  of  these 
societies  ;  usually  he  has  the  privilege  to  join  any  one,  and  a  ^e^■ered 
or  successful  shaman  will  gather  a  great  society,  while  a  shaman  of 
less  skill  will  preside  over  a  society  more  feeble.  Let  us  call 
these,  ecclesiastic  corporations,  and  call  the  shamans  priests.  The 
only  corporations  in  savagery  are  ecclesiastic.  The  way  in  which 
they  are  regimented  and  controlled  differs  from  tribe  to  tribe,  and 
there  is  a  great  variety  of  ceremonial  observances.  In  all  civic 
councils  the  ecclesiastic  authorities  take  part  and  have  specified 
functions  to  perform,  and  introduce  into  ci^'ic  life  the  ceremonies 
which  they  believe  will  procure  good  fortune.  Perhaps  the 
ecclesiastic  authorities  may  be  more  powerful  than  the  civic 
authorities,  and  the  hereditary  line  of  special  ecclesiastic  governors 
may  gradually  overpower  the  ci\'ic  constitution  and  absorb  it  as 
a  secondary  element  in  the  ecclesiastic  constitution,  for  it  must 
be  remembered  that  the  chief  priests  are  men ;  the  women  play 
a  very  small  part  in  ecclesiastic  affairs.  Now,  as  the  men  manage 
ecclesiastic  affairs  as  chief  priests,  so  civil  affairs  are  managed 
mainly  by  men  as  eldermen,  and  the  conflict  which  sometimes 
arises  between  the  l^'o  forms  of  government  is  mainly  between 
men  and  men  —  between  able  eldermen  and  able  shamans.  Some- 
times both  offices  are  combined  in  one  person,  and  the  great  elder- 
man  may  also  be  the  great  shaman. 

There  are  five  fundamental  principles  of  justice ;  that  is,  to 
secure  justice,  five  fundamental  purposes  must  be  considered : 
Justice  is  the  establishment  of  peace.  Justice  is  the  establish- 
ment of  equality.  Justice  is  the  establishment  of  liberty.  Justice 
is  the  establishment  of  equity ;  and  justice  is  the  establish- 
ment of  truth.  In  all  law,  primitive  and  modern  alike,  these 
princij)les  are  recognized,  and  all  institutions  are  organized  for 
these  purposes. 

In  the  study  of  North  American  tribes  it  is  always  found  that 
the  purpose  assigned  and  recognized  for  the  organization  of  that 
unit  is  the  establishment  of  peace.     Two  or  more  bodies  have 


80  LAW  AND   THE   STATE  [Part  I, 

come  to  war  and  finally  agree  to  live  in  peace  and  make  a  treaty, 
and  the  terms  of  the  treaty  are  invariably  of  one  character  if  they 
unite  as  a  tribe.  If  they  unite  as  a  confederacy,  it  is  for  other  pur- 
poses. This  fundamental  condition  for  the  organization  of  a  tribe  is 
that  the  one  party  agrees  that  its  women  shall  be  the  wives  of 
the  other,  with  a  reciprocal  obligation ;  and  this  is  the  character- 
istic which  distinguishes  tribes  from  confederacies.  A  body  of 
people  that  is  organized  for  the  purpose  of  regulating  marriage  is  a 
tribe,  and  a  body  of  people  organized  for  war  is  a  confederacy. 
Thus  the  organization  of  a  tribe  itself  is  the  first  recognition  of  the 
principle  of  peace  in  the  origin  of  constitutions. 

The  principle  of  equality  is  recognized  in  the  method  of  distribut- 
ing the  spoils  of  the  arrowy  the  fish  net,  and  the  fruit  basket,  which 
is  an  equal  division  to  all  the  members  of  the  clan.  The  principle 
of  liberty  is  first  recognized  when  slavery  is  established,  and  the 
means  of  obtaining  freedom  are  provided,  and  that  is  always  the 
case  in  savage  society.  Slaves  are  captured  enemies,  who  there- 
fore deserve  to  die.  They  are  not  always  killed,  but  sometimes 
(even  quite  often)  adopted  into  the  tribe.  A  captive  can  not 
become  a  member  of  the  tribe  without  some  kinship  position, 
therefore  he  must  be  adopted  by  some  woman  as  her  child,  and 
adoption  in  savagery  is  often  called  new  birth.  Now,  he  takes 
the  kinship  name  under  a  legal  fiction  —  that  is,  he  is  "younger" 
to  ever.A,'  living  person  of  the  tribe  at  that  time,  and  all  persons  sub- 
sequently born  are  younger  to  him.  This  is  not  yet  slavery.  If 
the  captive  belongs  to  a  tribe  of  hereditary  enemies  who  have  from 
time  immemorial  been  designated  by  some  opprobrious  term,  as 
cannibals,  liars,  snakes,  etc.,  then  it  may  he  that  the  captive  is 
doomed  to  perpetual  younger  brotherhood,  and  can  never  exer- 
cise authority  over  any  person  within  the  tribe,  though  such 
person  may  be  born  after  the  new  birth  of  the  captive.  This 
is  the  first  form  of  slavery.  Usually,  though  not  invariably, 
the  captives  adopted  are  children.  Now  such  children  may  ulti- 
mately become  useful  members  of  the  tribe  and  by  their  virtues 
even  win  rank  in  kinship,  and  a  captive  may  thus  pass  from  slavery 
to  freedom.  The  many  methods  adopted  for  conferring  freedom 
would  be  a  long  and  weary  story,  but  they  are  practically  the  same 
as  those  conferring  rank  in  kinship.  This  must  be  briefly  ex- 
plained, though  it  has  been  already  shown  in  part.  The  successful 
warrior,  hunter,  or  food  gatherer  is  rewarded  by  a  special  portion 
of  the  spoil  as  an  equity.  Now  he  who  has  for  a  term  of  years 
been  successful  in  anv  of  the  activities  of  tribal  life  and  who  ex- 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATION  81 

hibits  skill  and  wisdom  therein  is  promoted  by  giving  him  an  ad- 
vanced kinship  designation.  One  or  more  grades  may  be  climbed 
at  one  time  and  promotions  may  follow  one  another  rapidly,  so 
that  a  brilliant  youth  may  become  an  elderman,  and  gray-haired 
men  must  address  him  as  "father,"  and  he  must  even  call  his 
natural  grandfather  "grandson."  By  such  methods  primordial 
equity  is  established. 

That  which  in  modern  civilization  is  the  highest  function  of  the 
court  and  best  exhibits  the  talents  of  the  advocate  is  the  discovery 
of  facts ;  but  ready  methods  for  discovering  the  truth  prevail 
in  savagery.  This  is  the  function  of  the  priest,  who  by  some  form 
of  divination  discovers  the  facts.  Thus  it  is  that  justice  is  dis- 
tributed in  its  five  elements  of  peace,  equality,  liberty,  equity, 
and  truth. 

Justice  is  not  always  performed  in  savage  society,  and  it  even 
goes  awry  in  civilized  society ;  hence  we  have  remedies  in  savagery 
and  civilization  alike.  But  sometimes  there  is  no  remedy, 
when  punishment  is  executed.  We  have  already  shown  how 
exogamous  groups  are  organized.  A  man  can  not  marry  within 
his  clan,  because  already  the  clan  has  promised  its  women  for  the 
wives  of  another  clan,  yet  the  marriage  may  be  accomplished  and 
crime  is  done.  This  is  incest.  Often  nominally  the  punishment 
is  death,  and  sometimes  the  law  is  executed,  but  there  are  many 
W' ays  by  which  justice  may  be  done  without  inflicting  the  ultimate 
penalty.  The  crime  may  be  condoned  and  a  price  paid,  and  this 
often  done  may  ultimately  result  in  a  custom  of  marriage  by  pur- 
chase. The  clans  of  a  tribe  may  prosper  equally,  and  there  may  be 
more  men  in  one  clan*  than  there  are  women  in  another,  and  men 
may  quarrel  or  even  fight  for  wives,  and  such  contest  may  ultimately 
be  regulated  by  law ;  this  results  in  marriage  by  wager  of  battle. 
If  the  woman  is  unwilling,  it  may  also  require  capture,  and  this 
may  be  legalized  under  certain  forms  and  ceremonies,  and  we  have 
marriage  by  capture.  But  young  men  and  young  women  form 
mutual  attachments  which  are  sometimes  stronger  than  tribal 
law,  and  they  may  abscond  and  live  together  as  man  and  wife.  If 
they  can  successfully  maintain  themselves  in  the  wilderness  until 
a  child  is  born,  the  child  becomes  the  certificate  of  marriage  and 
the  wedding  is  thus  legalized,  and  with  this  certificate  the  crime  is 
atoned.     This  is  the  only  marriage  by  choice. 

Now,  in  all  of  these  extratribal  marriages,  crime  is  committed, 
and  the  peculiar  methods  and  ceremonies  of  marriage  by  purchase, 
marriage  by  wager  of  battle,  marriage  by  capture,  and  marriage 


82  LAW   AND   THE   STATE  [Part  I. 

by  choice  result  in  the  reestabhshment  of  justice  as  it  is  conceived 
in  the  savage  mind.  We  have  already  explained  much  of  personal 
law  in  the  explanation  of  the  law  of  marriage  and  the  law  of  pro- 
motion and  reduction.  Yet  there  are  other  subjects  worthy  of 
present  consideration.  Murder  is  punished  with  death.  The 
crime  is  against  the  clan,  and  any  member  of  the  clan  may  become 
the  avenger,  though  often  some  particular  person  is  delegated  to 
that  office.  The  murderer  may  also  be  defended  by  his  clan; 
in  such  case  the  death  of  any  of  the  murderer's  clan  atones  for  the 
death  of  the  murdered  man,  but  the  murderer  may  be  declared 
an  outlaw  by  his  clan,  and  any  man  of  any  clan  may  dispatch  him 
with  impunity.  In  some  cases  murder  may  be  atoned  by  sub- 
stitution ;  that  is,  the  murderer  may  be  expatriated,  driven  from 
his  home  and  clan,  and  thus  become  dead  to  his  own  people 
and  then  be  adopted  by  the  injured  family  to  replace  the 
murdered  person.  Thus  the  wife  of  the  murdered  man  may 
adopt  the  murderer  for  her  husband  ;  in  so  doing  he  loses  his  own 
name  and  all  relations  of  kinship  and  adopts  the  name  and  rela- 
tions of  kinship  of  the  murdered  man.  A  quarrelsome  man  may 
embroil  clans,  and  this  may  be  carried  on  to  such  an  extent  that 
the  clan  will  declare  him  an  outlaw.  Sometimes  murder  is  atoned 
by  the  payment  of  a  stipulated  or  customary  price,  and  usually 
blood  barter  is  graded  by  rank.  Maiming  is  also  avenged  by  the 
clan,  "an  eye  for  an  eye  and  a  tooth  for  a  tooth;"  but  it  may  be 
compounded  by  common  agreement  between  the  belligerent 
clans. 

A  belief  in  witchcraft  is  universal.  A  person  suspected  may 
finally  come  to  be  universally  recognized  as  practicing  black  art. 
Such  a  wicked  person  is  killed  as  an  outlaw.  The  wizard  may 
not  have  such  a  reputation  in  his  own  clan,  but  may  be  accused 
of  witchcraft  by  another  clan  ;  if  there  is  a  Avish  to  preserve  him, 
his  witchcraft  may  be  compounded. 

We  have  already  explained  the  equal  division  of  property  in  the 
clan,  the  equitable  division  made  to  the  successful  hunter,  and 
that  personal  property  is  inherited  by  the  grave,  while  clan  and 
tribal  property  belong  to  a  perpetual  person.  Theft  sometimes 
but  rarely  occurs  ;  when  it  does,  the  object  stolen  may  be  restored  ; 
when  it  can  not  be  restored,  the  theft  is  compounded  in  some 
multiple  proportion.  The  only  corporations  in  savagery  are  ec- 
clesiastic, and  crimes  against  the  medicine  societies  are  those  which 
result  from  the  divulging  of  secrets  or  the  teaching  of  rites  by 
unauthorized  persons  or  the  exercise  of  such  rites  by  persons  incom- 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATION  83 

petent  therefor.  Proceedings  for  witchcraft  are  conducted  b}' 
the  ecclesiastic  bodies. 

Such,  in  outhne,  are  the  plan  of  regimentation  and  the  funda- 
mental principles  of  justice  recognized  in  the  most  primitive  tribal 
states  found  among  mankind.  This  stage  of  society  is  known  as 
savagery.  Savages  are  primitive  sylvan  men ;  they  are  denizens 
of  forest  and  wold  without  the  skill  necessary  to  clear  away  the 
forests  and  establish  higher  agriculture  and  domesticate  herds  of 
animals.  When  these  feats  are  accomplished,  then  men  are  said 
to  have  reached  the  stage  of  barbarism. 

Savagery  gradually  develops  into  barbarism  and  barbarism  itself 
is  represented  in  the  plan  of  regimentation,  which  involves  a 
change  in  constitution,  legislation,  execution,  administration,  and 
adjudication.  The  change  of  regimentation  is  represented  by  the 
extinction  of  the  clan  and  its  replacement  by  the  gens.  The  term 
gens  is  here  used  to  mean  the  unit  of  government  herein  described 
as  a  group  of  persons  who  reckon  consanguineal  kinship  in  the  male 
line. 

We  have  already  described  the  double  organization  of  every 
savage  tribe  as  civil  and  ecclesiastic,  and  noted  the  conflict  which 
arises  between  groups  as  thus  organized.  A  powerful  ecclesiastic 
organization  will  sometimes  absorb  the  civil  organization,  especially 
when  the  priest  and  elderman  is  the  same  person.  Quite  often 
the  sacerdotal  office  is  hereditary,  descending  from  father  to  son, 
and  thus  grows  up  a  method  of  reckoning  kinship  in  the  male 
line  as  fundamental.  Now  there  are  many  circumstances  in 
primitive  life  which  reinforce  this  tendency.  When  the  men  of 
the  clan  have  to  go  to  the  annual  fishing  ground  for  the  summer 
catch,  they  take  with  them  their  wives  and  children.  Such  wives 
and  children  are  no  longer  under  the  power  of  the  eldermen  ;  they 
are  geographically  separated  from  them,  for  the  men  of  the  clan 
who  work  together  are  distinct  from  the  men  of  the  other  clans 
where  each  group  fishes  by  itself.  Hunting  is  often  managed  in 
this  manner  by  clans.  Such  annual  hunting  and  fishing  excursions 
weaken  the  authority  of  the  mothers,  brothers,  and  uncles,  and 
strengthen  the  authority  of  husbands  and  fathers.  But  there  are 
two  agencies  which  seem  to  be  even  more  potent.  Agriculture  is 
born  in  arid  lands  where  irrigation  is  necessary,  and  the  men  of  the 
clan  unite  to  manage  the  stream  which  is  used  in  irrigation  and 
to  protect  the  crops  which  lie  under  the  canals,  though  the  crops 
themselves  may  be  cultivated  chiefly  by  the  women.  Here  again 
there  is  a  geographical  segregation  of  the  women  and  children 


84  LAW   AND   THE   STATE  [Part  I. 

under  the  immediate  supervision  and  control  of  husbands  and 
fathers.  Finally,  animals  are  domesticated  and  there  are  flocks 
and  herds  under  the  control  of  the  men.  The  pasturage  for  one 
clan  flock  is  in  one  valley  and  for  another  clan  flock  in  another 
valley,  for  the  property  is  thus  kept  apart ;  and  this  also  serves 
to  segregate  the  women  from  the  men  of  their  clan  kindred  and 
place  them  under  the  authority  of  husbands  and  fathers.  By  all 
of  these  methods  clanship  is  broken  down  and  a  new  fundamental 
method  of  reckoning  in  kinship  is  developed  through  males ;  this 
is  the  gens.  ]\Iuch  time  may  be  taken  in  making  these  changes, 
while  the  authority  of  the  clan  is  gradually  weakened  and  the 
authority  of  the  gens  established.  Many  of  the  tribes  of  North 
America  are  in  the  transitional  stage. 

When  the  change  is  made,  councils  as  well  as  ecclesiastic  bodies 
are  still  controlled  by  men,  but  the  regimentation  is  radically 
distinct.  Perhaps  the  most  fundamental  change  that  comes  is  the 
right  of  the  father  over  his  own  children,  especially'  in  deciding 
their  marriage  relations,  for  this  right  is  not  transferred  from  clan 
to  gens,  but  from  clan  to  father.  With  this  change  comes  another 
of  fundamental  importance.  With  the  acquisition  of  herds,  farm- 
ing lands,  and  stores  of  grain,  wealth  is  accumulated,  and  this 
wealth  is  controlled  by  the  gentile  patriarchs.  It  is  no  longer 
clan  property,  but  gentile  property  in  the  possession  and  under  the 
control  of  the  patriarch,  who  wields  a  power  never  known  in 
savagery.  The  patriarch  now  is  always  chief  and  priest  and  the 
practical  owner  of  the  wealth ;  he  thus  becomes  the  master  of  the 
destiny  of  his  retainers.  A  particular  effect  is  noted  in  the  council. 
The  number  of  persons  who  compose  the  council  is  gradually  re- 
duced, and  these  chiefs  and  councilors  are  regimented  into  patri- 
archies for  war  and  public  works,  while  instruction  falls  mainly 
into  the  hands  of  husbands  and  fathers,  and  the  wife  is  no  longer 
controlled  by  her  clansmen,  for  she  is  no  longer  under  their  pro- 
tection. Thus  the  husband  becomes  the  master  of  the  wife  and 
children. 

In  the  clan  the  head  is  an  elderman  and  is  an  "uncle"  or  "great 
uncle"  because  kinship  is  reckoned  through  females.  This  is 
expressed  in  Indian  tongues  by  the  aphorism  that  "the  woman 
carries  the  clan,"  while  in  barbarism  "the  man  carries  the  gens." 
This  is  the  first  great  revolution  in  tribal  society  accomplished  by 
the  consolidation  of  power  in  the  hands  of  the  few,  and  the  organiza- 
tion of  the  gentile  family.  The  gens  is  ruled  by  the  patriarch  who 
represents  the  family  in  the  councils  of  the  tribe  and   the   con- 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATION  85 

federac}'  and  holds  all  the  property  in  trust  for  the  gens  over  which 
he  rules  by  civil  law  with  civil  sanction  and  ecclesiastical  law  with 
ecclesiastic  sanction. 

In  savage  society  there  is  no  written  language,  hence  the  laws 
are  classed  and  expressed  in  terms  of  kinship,  but  in  barbaric 
society  an  additional  mnemonic  and  classific  method  is  developed, 
which  must  now  be  delineated ;  it  arises  out  of  ecclesiastic  func- 
tions of  government  and  ultimately  becomes  dominant  so  as  to 
modify  the  kinship  system.  In  savagery  the  world  is  divided  into 
regions  —  the  east,  west,  north,  south,  zenith,  nadir,  and  center. 
This  is  continued  in  a  more  highly  developed  form  in  barbarism 
until  it  finally  becomes  the  dominant  system.  Sometimes  the 
regions  are  but  five  in  number  —  east,  west,  north,  south,  and 
center ;  but  more  often  the  seven  regions  are  recognized.  Some- 
times the  number  five,  but  more  commonly  the  number  seven, 
becomes  the  sacred  number.  This  division  of  the  world  into  regions 
is  naturally  born  in  the  usages  of  language  and  at  last  becomes  as 
deeply  woven  into  society  as  language  itself,  and  the  reality  of  the 
regions  becomes  sacred,  as  language  is  held  to  be  sacred.  The 
theory  of  the  regions  is  not  only  woven  into  their  speech  and  into 
their  institutions,  but  it  becomes  one  of  the  principal  elements  of 
picture  writing  and  is  represented  by  some  form  of  the  cross  sig- 
nifying the  east,  west,  north,  and  south,  to  which  are  attached 
some  other  devices  for  representing  the  zenith,  nadir,  and  center. 
Thus  the  swastika  is  found  as  a  symbol  among  many  savage  tribes, 
and  it  seems  to  be  universal  among  barbaric  tribes. 

These  world  symbols  often  govern  methods  of  architecture. 
The  theory  of  worlds  is  of  vast  extent  and  of  profound  influence. 
It  is  found  to  pervade  tribal  society  not  only  in  America,  but  else- 
where throughout  the  world.  I  am  tempted  in  this  place  to  go 
to  the  Orient  for  an  example  to  show  how"  laws  and  the  maxims 
of  laws  are  formulated  in  savage  and  barbaric  society,  but  I  must 
premise  the  statement  by  explaining  one  other  method  of  formu- 
lating laws.  The  particulars  of  law  are  often  represented  by 
numbers  —  one  number  for  each  finger  of  the  hand ;  and  the 
reciprocal  rights  and  duties  by  the  five  numbers  represented 
l\v  the  five  fingers  of  the  other  hand.  Thus  by  pointing  in  the 
direction  of  one  region  with  the  proper  finger  of  the  right  or 
left  hand  any  particular  law  or  maxim  can  be  expressed  in 
gesture  speech. 

I  quote  from  the  Sigalowada  Sutta,  a  table  of  aphorisms  pub- 
lished by  Rhys-Davids  in  his  book  on  Buddhism,  which  might  be 


86  LAW   AND   THE   STATE  [Part  I. 

duplicated  as  a  method  of  schematization  in  many  of  the  tribes 
of  North  America.  The  scheme  in  which  the  aphorisms  are 
arranged  is  by  regions.  It  has  the  same  design  as  a  scheme,  that 
the  swastika  has  as  a  picture  writing,  and  both  are  as  natural  to 
the  human  race  as  the  recognition  of  the  cardinal  points.  The 
regimentation  in  kinship  society  is  taken  by  analogy  from  the 
recognized  relationship  of  consanguinity  and  affinity  for  schematic 
and  mnemonic  purposes.  The  following  schemes  prevail  among 
savage  and  barbaric  people  for  a  great  variety  of  purposes  :  Schemes 
of  four,  five,  six,  or  seven  are  derived  from  the  regions,  schemes  of 
five  are  fixed  and  perpetuated  by  the  number  of  fingers  on  the  hand, 
schemes  of  ten  are  derived  from  the  number  of  fingers  on  both 
hands,  and  schemes  of  twenty  from  the  number  of  fingers  and 
toes,  while  schemes  of  four  are  sometimes  found  derived  in  a 
fanciful  way  from  the  colors  of  the  four  regions  —  east,  west, 
north,  and  south.  The  scheme  which  Rhys-Davids  records  from 
India  is,  first,  a  scheme  of  six  regions ;  second,  it  is  a  scheme  of 
reciprocal  fives  as  the  fingers  on  the  hand  are  reciprocal.  In  the 
second  division  of  the  sixth  regional  group  it  will  be  noticed  that 
the  last  aphorism  violates  the  symmetry  of  the  arrangement.  In 
all  others  there  are  five;  in  this  there  are  six.  This  peculiarity 
may  be  found  anywhere  in  North  America  and  South  America. 
It  is  the  thirteenth  of  the  baker's  dozen.  It  is  the  common  method 
of  showing  that  the  tale  is  complete.     Thus  Rhys-Davids : 

The  Teacher  was  staying  at  the  bambu  grove  near  Rajagriha ;  and 
going  out  as  usual  to  beg,  sees  the  householder  Sigala  bowing  down,  with 
streaming  hair,  and  wet  garments,  and  clasped  hands,  to  the  four  quar- 
ters of  the  heaven,  and  the  nadir,  and  the  zenith.  On  the  Teacher  asking 
the  reason  why,  Sigala  says  that  he  does  this,  "honoring,  reverencing,  and 
holding  sacred  the  words  of  his  father."  Then  the  Teacher,  knowing 
that  this  was  done  to  avert  evil  from  the  six  directions,  points  out  to  him 
that  the  best  way  to  guard  the  six  quarters  is  by  good  deeds  to  men  around 
him  —  to  his  parents  as  the  east,  his  Teachers  as  the  south,  his  wife  and 
children  as  the  west,  his  friends  and  relatives  as  the  north,  men  devoted 
to  the  religious  life  (whether  Brahmans  or  Buddhist  mendicants)  as  the 
zenith,  and  his  slaves  and  dependents  as  the  nadir.  Then  in  an  orderlj' 
arrangement,  evidently  intended  to  assist  the  memory,  after  some  general 
precepts  and  a  description  of  true  friendship,  the  chief  duties  men  owe  to 
one  another  are  thus  enumerated  under  the'above  six  heads  ;  [for  example] : 

1.  Parents  and  Children 
Parents  should  — 

1.  Restrain  their  children  from  vice. 

2.  Train  them  in  virtue. 

3.  Have  them  taught  arts  or  sciences. 

4.  Provide  them  with  suitable  wives  or  husbands. 

5.  Give  them  their  inheritance. 


Chap.  I.]  FORMS   OF   SOCIAL   ORGANIZATION  87 

The  child  should  say  — 

1.  I  will  support  them  who  supported  me. 

2.  I  will  perform  family  duties  incumbent  on  them. 

3.  I  will  guard  their  property. 

4.  I  will  make  myself  worthy  to  be  their  heir. 

5.  When  they  are  gone,  I  will  honor  their  memory. 


I  have  spoken  of  phratries  as  a  system  of  groups,  sometimes 
found  in  savagery  and  always  in  barbarism.  We  are  now  able 
to  explain  the  meaning  of  the  phratry.  There  may  be  many  clans 
or  gentes  in  a  tribe,  and  two  or  more  clans  or  gentes  may  con- 
stitute an  intervening  unit  which  we  call  the  phratry.  With  the 
iNIuskhogean  there  are  four  phratries,  one  for  the  east,  one  for  the 
west,  one  for  the  north,  and  one  for  the  south.  With  the  Zufii 
there  are  six  phratries,  one  for  the  east,  one  for  the  west,  one 
for  the  north,  one  for  the  south,  one  for  the  zenith,  and  one  for 
the  nadir.  Thus  the  phratries  are  organized  by  m\'thologie 
regions ;  and  this  method  of  regimentation  finds  expression  in  the 
structure  of  the  council  chamber,  in  the  plaza,  and  in  the  plan  of 
the  village.  Here  in  the  phratry  we  have  the  beginning  of  district 
regimentation,  which  ultimately  prevails  in  civilization. 

The  fabric  of  primitive  society  is  a  web  of  streams  of  kindred 
blood  and  a  woof  of  marriage  ties.  This  tapestry  is  wrought  in 
wonderful  patterns,  for  on  it  can  be  traced  the  outlines  of  primi- 
tive mythology.  Some  scholars  have  seen  in  the  fabric  only  the 
mythic  patterns  enwrought  and  failed  to  discover  the  real  institu- 
tional foundation. 


Chapter  II 
EVOLUTION  OF  THE   STATE  ^ 

1 .  The  State  was  originally  a  totem  State,  and  consisted  of  the 
union  of  various  groups  bound  together  by  the  unity  of  their 
animal  god,  which  sacred  bond,  however,  gradually  went  to  pieces, 
leaving  the  clan  or  family  tie.  This  is  based,  as  was  the  sacred 
bond,  mainly  on  the  unity  of  blood,  but  with  the  rejection  of  the 
animal  god  which  had  fused  the  families  together  in  one  uniform 
spirit.  Worship  of  ancestors  then  took  the  place  of  the  totem 
belief,  and  it  is  the  spirits  of  the  dead  that  hold  the  family  together, 
give  stability  to  the  clan,  and  in  the  worship  of  which  the  whole  finds 
its  consecration.  All  our  cultural  States  were  formerly  clan-States ; 
and  in  the  unity  of  blood,  the  unity  of  descent,  the  unity  of  their 
view  of  life,  lay  their  strength.  Such  a  clan-State  does  not  require 
clearly  defined  territory.  It  remains  the  same  even  when  the 
clans  wander.  The  German  tribes  remained  as  they  were,  even 
when  they  wandered  from  the  Balkans  over  the  endless  Russian 
plains  to  the  Elbe,  from  there  to  the  Rhine,  to  the  Rhone,  and 
from  there  to  Italy;  and  it  is  just  the  same  with  the  numerous 
Bantu  tribes  and  Hamitic  peoples  who  wander,  constantly  changing 
their  place  of  abode.  There  is  an  extraordinary  communal  nerve 
in  this  clan  connection  ;  and  it  is  comprehensible  that  all  phenom- 
ena of  life  under  these  conditions  are  social  in  character;  and 
that  all  thought  and  action  unite  in  the  idea  that  each  individual 
is  a  member  of  the  tribe  whose  famous  ancestors  are  worshipped 
as  divine,  and  that  he  performs  his  great  deeds  in  the  sight  of  his 
forefathers. 

2.  A  tremendous  change' takes  place  when  the  tribal  tie  gives 
way  to  the  territorial  tie ;  and  this  appears  in  two  new  legal  insti- 
tutions which  embrace  all  life  and  activity.  The  first  is  that  persons 
are  received  into  the  nation  who  do  not  belong  to  the  tribe ;    so 

1  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrecht's  trans.),  Boston  Book  Co.,  1914  ("Philosophy  of  Law  Series," 
Vol.  XII).] 

88 


Chap.  II. ]  EVOLUTION   OF  THE   STATE 

that  the  number  of  clans  and  famihes  can  constantly 
and  that  in  this  way  persons  enter  who  do  not  worship  the 
spirits  of  the  tribe,  and  whose  ancestors  are  in  no  way  con\ 
with  the  ancestors  that  compose  the  tribal  cult.  This  is,  of  cc 
a  sign  of  a  certain  decline  of  ancestor  worship,  and  the  clans  certaV 
must  have  felt  this  for  a  long  time,  and  have  persecuted  the  in- 
truders with  all  their  might;  nevertheless,  this  event,  like  every 
other  development  that  lies  in  the  hidden  folds  of  the  world's 
history,  cannot  be  prevented.  What  universal  history  desires 
may  for  a  time  be  delayed  by  the  mind  of  man,  but  cannot  be 
permanently  suppressed. 

3.  A  second  factor  comes  under  consideration.  Whereas, 
formerly,  the  tribe  lived  in  and  to  itself,  including  only  itself  and 
its  slaves  in  the  sphere  of  its  power,  and  leaving  its  neighbors 
alone  even  when  they  lived  on  the  same  land,  the  necessity  now 
arose  of  exercising  complete  dominion  over  a  certain  territory 
in  which  the  members  of  the  State  have  the  upper  hand.  Dis- 
putes with  those  living  outside  the  boundaries,  however,  became 
so  numerous  and  violent  that  there  was  no  alternative  but  to  extend 
the  authority  to  them  also ;  at  least  to  the  extent  of  repressing 
certain  activities  injurious  to  the  State,  establishing  certain  police 
regulations,  and  defending  the  State  against  the  encroachment  of 
this  alien  population.  Chieftainry  especially  is  often  very  promi- 
nent in  this  connection.  Herewith  the  idea  of  the  territorial  State 
is  firmly  established ;  not  only  do  the  tribes  admit  others  to  their 
ranks,  but  even  persons  who  are  outside  the  circle  of  those  belong- 
ing to  the  State  must  submit  to  the  commands  of  the  ruling  people. 
This  was  the  system  that  was  carried  out  in  all  our  culture  States 
after  the  destruction  of  the  old  Germanic  principle  of  personality. 
Only  in  the  Orient  does  the  old  system  still  exist ;  but  there  is  a 
privilege  that  the  Occidentals  with  their  high  culture  have  ob- 
stinately wrestled  from  the  Orient :  the  Occidentals  refuse  to 
submit  to  the  law  and  jurisdiction  of  Turkey  and  Persia,  and  wish  to 
live  under  their  own  laws  and  own  authority,  even  on  the  territory 
of  these  Oriental  States. 

4.  A  further  division  into  classes  of  the  population  is  sometimes 
accomplished  by  way  of  conquest.  It  often  happens  that  the  con- 
querors force  back  the  original  people  entirely,  or  so  decimate  them 
that  they  no  longer  play  any  part  in  the  life  of  the  State.  But 
not  infrequently  the  old  population  is  preserved  as  a  second  layer 
or  class,  if  for  no  other  reason  than  because  the  conquerors  are  not 
able  to  perform  all  the  useful  labor  that  is  necessary  to  the  main- 


90  LAW   AND   THE   STATE  [Part  I. 

tenance  of  their  life,  and  hence  make  use  of  the  conquered  in- 
habitants as  a  servant  class.  The  latter  may  be  oppressed  and 
held  in  slavery  or  helotry,  or  they  may  be  granted  a  freer  position, 
partly  in  recognition  of  their  developed  civilization,  partly  in 
consideration  of  the  fact  that  free  labor  appears  to  be  more  advan- 
tageous, or  that  the  original  people  are  so  far  masters  of  the  situa- 
tion that  the  conquerors  must  live  on  terms  of  agreement  with 
them,  and  cannot  utterly  subjugate  them. 

In  this  way,  a  mixed  population  easily  arises  in  which  the 
conquerors  assume  the  role  of  masters,  and  form  a  sort  of  nobility 
in  contrast  to  the  lower  inhabitants. 

Sometimes,  another  layer  or  class  of  population  is  formed  by  the 
addition  of  some  other  people  that  is  dragged  from  its  own  place 
of  abode  and  settled  in  the  country. 

All  these  circumstances  oblige  the  tribal  State  to  adapt  itself 
to  the  altered  conditions,  and  to  blend  the  added  elements  more 
or  less  with  the  life  of  the  State. 

5.  In  the  transition  from  the  tribal  State  to  the  territorial 
State,  much  of  the  unity  of  the  people  is  transferred  to  the  State 
territory,  and  the  State  system  of  rulers  now  embraces  the  land 
without  reference  to  the  inhabitants. 

This  might  easily  lead  to  the  conclusion  that  a  man's  residence 
on  State  territory  established  the  fact  of  his  belonging  to  the  State. 
This  of  itself  would  mean  a  tremendous  transformation :  there 
could  no  longer  be  any  citizenship  independent  of  the  place  of 
residence.  But  such  a  development  could  only  thrive  if  the  as- 
pirations and  endeavors  of  the  different  States  were  so  uniform 
that  the  change  of  allegiance  from  one  to  another  could  follow  with- 
out a  displacement  of  interests.  Hence,  it  was  possible  to  carry 
out  this  system  in  a  confederacy  of  States ;  so  that  its  citizens 
could  belong  to  one  or  another  of  the  individual  States  according 
to  their  residence  or  place  of  abode.  But  as  long  as  the  interests 
of  States  are  so  various,  indeed,  even  antagonistic,  and  each  State 
develops  independently  to  a  certain  extent,  this  system  would  be 
detrimental.  Neither  would  it  be  ethically  desirable  ;  for  in  such 
disputes  and  struggles,  it  is  necessary  for  the  individual  to  adopt 
a  certain  definite  course,  and  to  make  the  collective  interests  of 
one  or  another  of  the  communities  his  own.  Hence,  it  is  still 
necessary  to  maintain  citizenship  apart  from  the  place  of  residence, 
and  to  give  it  a  greater  significance  in  the  position  of  the  individual 
in  legal  life ;  also,  in  particular,  to  combine  political  activity  with 
citizenship. 


Chap.  II.]  EVOLUTION   OF   THE   STATE  91 

6.  In  spite  of  the  territorial  principle,  therefore,  the  difference 
between  citizens  and  aliens  still  exists ;  and  in  such  a  way  that 
citizens  still  remain  citizens,  even  if  they  settle  in  a  foreign  country ; 
and  that  aliens  living  in  the  State  must  indeed  submit  to  its  laws, 
but  can  have  no  part  in  the  government,  and  that  their  family 
conditions  are  regulated  according  to  their  hereditary  rights. 

Thus,  a  certain  disagreement  arises  which,  however,  is  allowed 
to  remain  as  long  as  it  is  not  dangerous  to  the  State.  But  if  it 
becomes  undesirable,  it  then  is  necessary  to  drive  the  aliens  out. 

A  complete  solution  of  the  disagreement  has  never  been  achieved, 
and  will  not  be  here  attempted.  A  compromise  has  been  adopted 
by  some  States,  however,  based  on  the  principle  that  in  certain 
cases  the  alien  becomes  a  citizen  without  further  steps.  Thus, 
the  rule  has  been  established  that  an  individual  born  in  the  covmtry 
is  a  citizen,  or,  in  some  States,  only  if  also  his  parents  were  born 
there.  And  instances  are  not  few  where  residence  for  some  time 
suffices  to  give  aliens  the  right  to  acquire  citizenship.  In  this 
way  the  number  of  foreigners  living  in  the  country  can  be  reduced, 
and  the  discord  spoken  of  above  can  be  partly  avoided. 


Chapter  III 
OMNIPOTENCE  OF  THE  ANCIENT  STATE  ^ 

The  city  had  been  founded  upon  a  religion,  and  constituted 
like  a  church.  Hence  its  strength ;  hence,  also,  its  omnipotence 
and  the  absolute  empire  which  it  exercised  over  its  members.  In 
a  society  established  on  such  principles,  individual  liberty  could 
not  exist.  The  citizen  was  subordinate  in  everything,  and  without 
any  reserve,  to  the  city ;  he  belonged  to  it  body  and  soul.  The 
religion  which  had  produced  the  state,  and  the  state  which  sup- 
ported the  religion,  sustained  each  other,  and  made  but  one ;  these 
two  powers,  associated  and  confounded,  formed  a  power  almost 
superhuman,  to  which  the  soul  and  the  body  were  equally  enslaved. 

There  was  nothing  independent  in  man ;  his  body  belonged  to 
the  state,  and  was  devoted  to  its  defence.  At  Rome  military  ser- 
vice was  due  till  a  man  was  fifty  years  old,  at  Athens  till  he  was 
sixty,  at  Sparta  always.  His  fortune  was  always  at  the  disposal 
of  the  state.  If  the  city  had  need  of  money,  it  could  order  the 
women  to  deliver  up  their  jewels,  the  creditors  to  give  up  their 
claims,  and  the  owners  of  olive  trees  to  turn  over  gratuitously  the 
oil  which  they  had  made.- 

Private  life  did  not  escape  this  omnipotence  of  the  state.  The 
Athenian  law,  in  the  name  of  religion,  forbade  men  to  remain 
single.^  Sparta  punished  not  only  those  who  remained  single, 
but  those  who  married  late.  At  Athens  the  state  could  prescribe 
labor,  and  at  Sparta  idleness.  It  exercised  its  tyranny  even  in 
the  smallest  things ;  at  Locri  the  laws  forbade  men  to  drink  pure 
wine;  at  Rome,  Miletus,  and  Marseilles  wine  was  forbidden  to 
women .^  It  was  a  common  thing  for  the  kind  of  dress  to  be  in- 
variably fixed  by  each  city ;  the  legislation  of  Sparta  regulated  the 

1  [By  FusTEL  DE  CouLANGEs,  "  The  Ancient  City"  ;  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

-  Aristotle,  '''Econom.,"  II. 

3  Pollux,  VIII.  40.     Plutarch,  "Lvsander,"  30. 

*  Athenwus,  X.  33.     .mian,  "V.  H.,"  II.  37. 

92 


Chap.  III.]  OMNIPOTENCE    OF   THE   ANCIENT   STATE  93 

headdress  of  women,  and  that  of  Athens  forbade  them  to  take  with 
them  on  a  journey  more  than  three  dresses.^  At  Rhodes  and 
Byzantium  the  law  forbade  men  to  shave  the  beard.^ 

The  state  was  under  no  obhgation  to  suffer  any  of  its  citizens 
to  be  deformed.  It  therefore  commanded  a  father  to  whom  such 
a  son  was  born,  to  have  him  put  to  death.  This  law  is  found  in 
the  ancient  codes  of  Sparta  and  of  Rome.  We  do  not  know^  that 
it  existed  at  Athens ;  we  know  only  that  Aristotle  and  Plato  in- 
corporated it  into  their  ideal  codes. 

There  is,  in  the  history  of  Sparta,  one  trait  which  Plutarch  and 
Rousseau  greatly  admired.  Sparta  had  just  suffered  a  defeat  at 
Leuctra,  and  many  of  its  citizens  had  perished.  On  the  receipt  of 
this  news,  the  relatives  of  the  dead  had  to  show  themselves  in  public 
with  gay  countenances.  The  mother  who  learned  that  her  son 
had  escaped,  and  that  she  should  see  him  again,  appeared  af- 
flicted and  wept.  Another,  who  knew  that  she  should  never  again 
see  her  son,  appeared  joyous,  and  went  round  to  the  temple  to 
thank  the  gods.  What,  then,  was  the  power  of  the  state  that 
could  thus  order  the  reversal  of  the  natural  sentiments,  and  be 
obeyed  ? 

The  state  allowed  no  man  to  be  indifferent  to  its  interests ;  the 
philosopher  or  the  studious  man  had  no  right  to  live  apart.  He 
was  obliged  to  vote  in  the  assembly,  and  be  magistrate  in  his  turn. 
At  a  time  when  discords  were  frequent,  the  Athenian  law  per- 
mitted no  one  to  remain  neutral ;  he  must  take  sides  with  one  or 
the  other  party.  Against  one  who  attempted  to  remain  indifferent, 
and  not  side  with  either  faction,  and  to  appear  calm,  the  law  pro- 
nounced the  punishment  of  exile  with  confiscation  of  property. 

Education  was  far  from  being  free  among  the  Greeks.  On  the 
contrary,  there  was  nothing  over  which  the  state  had  greater  con- 
trol. At  Sparta  the  father  could  have  nothing  to  do  with  the  edu- 
cation of  his  son.  The  law  appears  to  have  been  less  rigorous  at 
Athens  ;  still  the  state  managed  to  have  education  in  the  hands  of 
masters  of  its  own  choosing.  Aristophanes,  in  an  eloquent  passage, 
shows  the  Athenian  children  on  their  way  to  school ;  in  order,  dis- 
tributed according  to  their  district,  they  march  in  serried  ranks, 
tlirough  rain,  snow,  or  scorching  heat.     These  children  seem  al- 

1  ^'Fragm.  Hist.  Grsec."  Didot,  t.  II.  p.  129,  211.  Plutarch,  "Solon," 
21. 

2  Athenceus,  XIII.     Plutarch,  "Cleomenes,"  9. 

"The  Romans  thought  no  marriage,  or  rearing  of  children,  nay,  no  feast 
or  drinking  bout,  ought  to  he  permitted  aoeording  to  every  one's  appetite 
or  fancy,  without  being  examined  and  inquired  into."  Plutarch,  "Cato 
the  Elder,"  23. 


94  LAW  A^TD   THE   STATE  [Part  I. 

ready  to  understand  that  they  are  performing  a  pubHc  duty.^ 
The  state  wished  alone  to  control  education,  and  Plato  gives  the 
motive  for  this :  -  "  Parents  ought  not  to  be  free  to  send  or  not  to 
send  their  children  to  the  masters  whom  the  city  has  chosen ;  for 
the  children  belong  less  to  their  parents  than  to  the  city." 

The  state  considered  the  mind  and  body  of  every  citizen  as  be- 
longing to  it ;  and  wished,  therefore,  to  fashion  this  body  and  mind 
in  a  manner  that  would  enable  it  to  draw  the  greatest  advantage 
from  them.  Children  were  taught  gymnastics,  because  the  body 
of  a  man  was  an  arm  for  the  city,  and  it  was  best  that  this  arm 
should  be  as  strong  and  as  skilful  as  possible.  They  were  also 
taught  religious  songs  and  hymns,  and  the  sacred  dances,  because 
this  knowledge  was  necessary  to  the  correct  performance  of  the 
sacrifices  and  festivals  of  the  city.^ 

It  was  admitted  that  the  state  had  a  right  to  prevent  free  in- 
struction by  the  side  of  its  own.  One  day  Athens  made  a  law  for- 
bidding the  instruction  of  young  people  without  authority  from  the 
magistrates,  and  another,  which  specially  forbade  the  teaching  of 
philosophy.^ 

A  man  had  no  chance  to  choose  his  belief.  He  must  believe  and 
submit  to  the  religion  of  the  city.  He  could  hate  and  despise  the 
gods  of  the  neighboring  city.  As  to  the  divinities  of  a  general  and 
universal  character,  like  Jupiter,  or  Cybele,  or  Juno,  he  was  free 
to  believe  or  not  to  believe  in  them ;  but  it  would  not  do  to  enter- 
tain doubts  about  Athene  Polias,  or  Erechtheus,  or  Cecrops. 
That  would  have  been  grave  impiety,  which  would  have  endangered 
religion  and  the  state  at  the  same  time,  and  which  the  state  would 
have  severely  punished.  Socrates  was  put  to  death  for  this  crime. 
Liberty  of  thought  in  regard  to  the  state  religion  was  absolutely 
unknown  among  the  ancients.  Men  had  to  conform  to  all  the 
rules  of  worship,  figure  in  all  the  processions,  and  take  part  in  the 
sacred  repasts.  Athenian  legislation  punished  those  by  a  fine  who 
failed  religiously  to  celebrate  a  national  festival.^ 

The  ancients,  therefore,  knew  neither  liberty  in  private  life, 
liberty  in  education,  nor  religious  liberty.  The  human  person 
counted  for  very  little  against  that  holy  and  almost  divine  authority 
which  was  called  country  or  the  state.     The  state  had  not  only,  as 

1  Aristophanes,  "Clouds,"  960-965.  '^  Plato,  ^'Laws,"  VII. 

'  Aristophanes,  "Clouds,"  966-968. 

*  Xenophon,  ^'Memor.,"  I.  2.  Diogenes  Laertius,  ^'Theophr."  These 
two  laws  did  not  continue  a  long  time ;  but  they  do  not  the  less  prove 
the  omnipotence  that  was  conceded  to  the  state  in  matters  of  instruction. 

5  Pollux,  VIII.  46.      Ulpian,  Schol.  in  Demosthenes ;  "  in  Meidiam." 


Chap.  III.]  OMNIPOTENCE    OF   THE   ANCIENT   STATE  95 

we  have  in  our  modern  societies,  a  right  to  administer  justice  to 
the  citizens ;  it  could  strike  when  one  was  not  guilty,  and  simply  for 
its  own  interest.  Aristides  assuredly  had  committed  no  crime,  and 
was  not  even  suspected ;  but  the  city  had  the  right  to  drive  him 
from  its  territory,  for  the  simple  reason  that  he  had  acquired  by 
his  virtues  too  much  influence,  and  might  become  dangerous,  if  he 
desired  to  be.  This  was  called  ostracism;  this  institution  was 
not  peculiar  to  Athens ;  it  was  found  at  Argos,  at  Megara,  at  Syra- 
cuse, and  we  may  believe  that  it  existed  in  all  the  Greek  cities.^ 

Now,  ostracism  was  not  a  chastisement ;  it  was  a  precaution 
which  the  city  took  against  a  citizen  whom  it  suspected  of  having 
the  power  to  injure  it  at  any  time.  At  Athens  a  man  could  be  put 
on  trial  and  condemned  for  incivism  —  that  is  to  say,  for  the  want 
of  affection  towards  the  state.  A  man's  life  was  guaranteed  by 
nothing  so  soon  as  the  interest  of  the  state  was  at  stake.  Rome 
made  a  law  by  which  it  was  permitted  to  kill  any  man  who  might 
have  the  intention  of  becoming  king.-  The  dangerous  maxim  that 
the  safety  of  the  state  is  the  supreme  law,  was  the  work  of  antiq- 
uity.^ It  was  then  thought  that  law,  justice,  morals,  everything 
should  give  way  before  the  interests  of  the  country. 

It  is  a  singular  error,  therefore,  among  all  human  errors,  to  be- 
lieve that  in  the  ancient  cities  men  enjoyed  liberty.  They  had  not 
even  the  idea  of  it.  They  did  not  believe  that  there  could  exist 
any  right  as  against  the  city  and  its  gods.  We  shall  see,  farther  on, 
that  the  government  changed  form  several  times,  while  the  nature 
of  the  state  remained  nearly  the  same,  and  its  omnipotence  was 
little  diminished.  The  government  was  called  by  turns  mon- 
archy, aristocracy,  democracy  ;  but  none  of  these  revolutions  gave 
man  true  liberty,  individual  liberty.  To  have  political  rights,  to 
vote,  to  name  magistrates,  to  have  the  privilege  of  being  archon, 
—  this  was  called  liberty ;  but  man  was  not  the  less  enslaved  to 
the  state.  The  ancients,  especially  the  Greeks,  always  exagger- 
ated the  importance,  and  above  all,  the  rights  of  society  ;  this  was 
largely  due,  doubtless,  to  the  sacred  and  religious  character  with 
which  society  was  clothed  in  the  beginning. 

1  Aristotle,  "Pol.,"  VIII.  2,  5.     Scholiast  on  Aristoph.,  "Knights,"  851. 

2  Plutarch,  "Publicola,"  12.  ^  Cicero,  "De  Legib.,"  III.  3. 


Chapter  IV 
CHIEFTAINRY  AND   KINGSHIP 

Section  1 

CULTURAL   IMPORTANCE    OF    CHIEFTAINRY  i 

1.  There  is  scarcely  another  institution  that  has  done  so  much 
for  the  growth  of  culture  as  chieftainry,  the  consequence  of  the 
peculiar  psychic  constitution  of  humanity,  of  the  suggestive  influ- 
ence of  strong  natures,  and  of  the  tremendous  power  which  the 
recklessness  and  superiority  of  individual  genius  exercises  over 
other  persons ;  in  other  words,  the  consequence  of  super-mankind 
and  of  the  existence  of  overpoweringly  strong  natures.  The  spirit 
of  history  was  obliged  to  use  this  means  in  order  to  advance  man- 
kind, even  though  it  were  by  force  and  compulsion  ;  for  such  strong 
natures  are  able  to  arouse  and  stir  up  the  nations  and  to  overcome 
a  stagnant  and  halting  evolution.  Certain  progressive  movements 
of  culture  are  always  agreeable  to  them,  and  in  order  to  bring  these 
movements  about,  they  apply  powerful  methods  which  universal 
history  would  not  otherwise  know.  Their  effect  may  be  likened 
to  that  of  a  volcanic  eruption,  which  does  indeed  work  great  destruc- 
tion, but  also  raises  up  new  lands,  and  brings  them  within  the  reach 
of  culture. 

2.  The  historical  beginnings  of  chieftainry  are  probably  origi- 
nally to  be  found  principally  in  bands  of  youths ;  at  any  rate,  to  a 
great  extent,  though  not  exclusively.  In  other  ways,  too,  a  bold 
warrior  or  powerful  brigand  could  seize  the  authority  of  a  chief. 
The  dangers  that  threatened  a  community  from  outside,  in  partic- 
ular, frequently  gave  rise  to  autocracy ;  for  it  required  a  strong 
and  ingenious  personality  who  could  inspire  the  mass  and  hold 
it  to  withstand  attacks  from  without.  If  once  such  an  individual 
by  victory  has  averted  the  external  danger,  he  gains  the  confidence 

^  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

96 


Chap.  IV,  §  1.]  CHIEFTAIXRY   AXD    KINGSHIP  97 

of  the  people,  and  there  is  no  hmit  to  his  power  within  the  nation ; 
successes  abroad  have  always  served  as  a  shield  and  cloak  for  the 
true  tyrant. 

3.  When  once  the  chieftain  has  obtained  control,  it  will  later  be 
possible  for  him  to  surround  himself  with  a  religious  nimbus. 
Provided  the  priests  are  not  against  him,  it  is  easy  for  him  to 
appear  as  the  son  of  heaven,  or  of  the  sun,  or  as  some  kind  of  divine 
messenger,  and  to  act  as  the  exponent  of  the  divine  law.  The 
result  will  be  that  the  whole  foundation  of  the  law  is  displaced, 
and  that  the  law  will  appear  as  an  issue  of  his  personality.  Now 
he  is  in  a  position  to  svray  and  rule  the  people  at  will.  Thence- 
forward, his  subjects  are  mere  tools  in  his  hands,  and  the  sacred 
relics  of  tradition  dissolve  under  his  power  as  soon  as  he  desires  it ; 
as  soon  as  he  seeks  the  advantage  of  the  State  in  something  else. 

The  further  presentation  of  chieftainry  and  the  development  of 
the  idea  among  the  different  nations  does  not  lie  within  our 
province ;  but  it  is  certainly  our  task  to  describe  what  chieftainry 
did  for  the  development  of  culture,  and  how  it  later  became 
kingship. 

4.  Its  influence  on  culture  undoubtedly  lies  mainly  in  this,  that 
it  protected  the  country  against  outside  enemies,  and  thus  secured 
the  peace  and  quietude  necessary  to  its  inward  development.  In 
addition,  it  furthered  the  idea  of  the  State  and  repressed  the  con- 
stant dissipation  of  the  population  by  kin-revenge  and  self-vindica- 
tion ;  for  the  chief  wishes  to  maintain  order  and  strives,  in  order  to 
extend  his  power,  to  take  the  administration  of  justice  entirely 
into  his  own  hands.  He  is  also  inclined  to  develop  the  resources  of 
the  country ;  for  the  more  it  produces,  the  more  his  power  and 
wealth  are  increased,  as  he  alone  controls  the  country's  goods. 

5.  Chieftainry  develops  into  kingship  under  the  influence  of  two 
ideas :  first,  the  idea  that  permits  the  State  as  well  as  the  chief  to 
be  recognized  as  a  personality.  Even  though  the  chief  be  the 
unrestricted  representative  of  the  State,  yet  the  conception  is  un- 
avoidable that  he  has  the  State  in  his  hands  only  temporarily,  and 
this  again  will  give  rise  to  the  thought  that  he  is  only  an  organ  of  the 
State  and  that  the  latter,  though  it  be  temporarily  embodied  in 
him,  is  yet  distinct  from  him. 

The  second  important  idea  is  that  of  duty,  the  thought  that  the 
advantage  of  the  chief  is  not  the  sole  consideration,  and  that,  as  an 
organ  of  the  State,  he  must  act  for  its  benefit.  This  idea  can  only 
develop  fully,  of  course,  where  the  conception  of  morality  is  already 
grown.     Nevertheless,  it  must  appear,  in  earlier  times  in  the  form 


98  LAW   AND   THE   STATE  [Part  I. 

of  a  religious  commandment,  wherever  religious  notions  have 
become  firm  enough  to  allow  clear  principles  and  regulations  to 
be  formulated ;  for  which,  above  all  things,  a  separate  priesthood 
is  necessary  which  as  the  exponent  of  the  good  may  succeed  in 
upholding  religion,  e\'en  when  opposed  to  the  ruler.  Wherever 
this  religion  exists,  it  will  require  logical  action  in  certain  directions, 
and  the  indulgence  of  certain  considerations,  and  will,  therefore, 
also  demand  of  the  sovereign  that  he  shall  not  give  way  to  his 
moods.  Thus,  the  way  is  levelled  for  further  development ;  and 
whoever  feels  it  his  duty  to  care  for  the  welfare  of  the  people,  who 
even  takes  an  oath  to  do  so,  as,  for  instance,  among  the  Aztecs,  is  no 
longer  a  chief  but  a  king. 

6.  Kingship,  like  chieftainry,  has  a  great  task  to  perform  in  the 
development  of  culture,  and  this  is  accomphshed  in  several  ways. 

(a)  The  person  who  acts  is  firmly  established  in  his  place,  and 
can  therefore  influence  certain  cultural  tendencies  far  more  inci- 
sively and  logically  than  can  any  other  organ  of  the  State.  This, 
of  course,  also  involves  a  great  weakness :  the  personality  of  the 
sovereign  becomes  of  extreme  importance,  and  there  are  wide 
mental  and  psychic  differences  among  personalities.  One  person 
may  be  fitted  by  nature  to  rule,  while  another  lacks  all  talent  in  this 
direction.  It  has  been  attempted  to  solve  this  difficulty  by  making 
kingship  elective ;  so  that  in  this  way  a  person  could  be  chosen 
who  had  already  proven  by  his  deeds  that  he  was  suited  to  the 
office  ;  but  this  system  failed,  because  it  led  to  corruption,  and  to 
constant  upheavals,  and  to  internal  struggles.  A  modified  form  of 
elective  kingship  is  found  among  some  peoples,  where  of  the  mem- 
bers of  the  royal  family,  one  is  chosen  to  reign  who  appears  to  be 
particularly  able ;  or,  in  some  nations,  a  member  who  proves  to  be 
unfitted  is  deposed  in  favor  of  another  member.  But  this  system 
also  gives  rise  to  many  disputes,  quarrels,  and  enmities. 

(b)  Kingship  brings  with  it  a  certain  strengthening  of  the  whole 
situation  and  frequently  also  greater  protection  against  danger 
from  without. 

(c)  It  may  prevent  not  only  destructive  movements  among  the 
people  from  gaining  the  upper  hand,  but  also  the  appearance  of 
powerful  party  elements  which  in  the  form  of  plutocracy,  class 
spirit,  and  party  tyranny  are  a  hindrance  to  the  real  progress  of 
the  State. 

(d)  Kingship  may  create  an  intellectual  centre,  and  advance 
both  arts  and  sciences ;  though  such  an  arrangement  is  not  with- 
out its  disadvantages ;  for  the  bad  features  of  the  patronage  of  a 


Chap.  IV,  §  2.]  CHIEFTAINRY   AND   KINGSHIP  99 

Mseceniis  are  often  increased  if  such  patronage  exists  by  the  grace 
of  the  king. 

7.  The  principal  remedy  against  the  disadvantages  of  kingship, 
especially  in  as  far  as  they  relate  to  the  contingency  involved  in 
getting  an  able  personality  for  the  head  of  the  government,  is  to 
place  other  powers  beside  the  king,  such  as  the  popular  assembly  or 
representatives  of  the  people,  and  the  ministry. 

Section  2 

AUTHORITY    OF    THE    KING  i 

1.    Religious  Authority 

We  should  not  picture  to  ourselves  a  city,  at  its  foundation, 
deliberating  on  the  form  of  government  that  it  will  adopt,  devising 
and  discussing  its  laws,  and  preparing  its  institutions.  It  was  not 
thus  that  laws  were  made  and  that  governments  were  established. 
The  political  institutions  of  the  city  were  born  with  the  city  itself 
and  on  the  same  day  with  it.  Every  member  of  the  city  carried 
them  within  himself,  for  the  germ  of  them  was  in  each  man's  belief 
and  religion. 

Religion  prescribed  that  the  hearth  should  always  have  a  su- 
preme priest.  It  did  not  permit  the  sacerdotal  authority  to  be 
divided.  The  domestic  hearth  had  a  high  priest,  who  was  the 
father  of  the  family ;  the  heart  of  the  cury  had  its  curio,  or  phra- 
triarch ;  every  tribe,  in  the  same  manner,  had  its  religious  chief, 
whom  the  Athenians  called  the  king  of  the  tribe.  It  was  also 
necessary  that  the  city  religion  should  have  its  supreme  priest. 

This  priest  of  the  public  hearth  bore  the  name  of  king.  Some- 
times they  gave  him  other  titles.  As  he  was  especially  the  priest 
of  the  prytaneum,  the  Greeks  preferred  to  call  him  the  prytane ; 
sometimes  also  they  called  him  the  archon.  Under  these  different 
names  of  king,  prytane,  and  archon  we  are  to  see  a  personage  who 
is,  above  all,  the  chief  of  the  worship.  He  keeps  up  the  fire,  offers 
the  sacrifice,  pronounces  the  prayer,  and  presides  at  the  religious 
repasts. 

It  may  be  worth  while  to  offer  proof  that  the  ancient  kings  of 
Greece  and  Italy  were  priests.  In  Aristotle  we  read,  "  The  care  of 
the  public  sacrifices  of  the  city  belongs,  according  to  religious 

1  [By  FusTEL  DE  CouLANGES,  "The  Ancient  City";  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 


100  LAW  AND  THE   STATE  [Part  I. 

custom,  not  to  special  priests,  but  to  those  men  who  derive  their 
dignity  from  the  hearth,  and  who  in  one  place  are  called  kings, 
in  another  prytanes,  and  in  a  third  archons."  ^  Thus  writes  Aris- 
totle, the  man  who  best  understood  the  constitution  of  the  Greek 
cities.  This  passage,  so  precise,  shows,  in  the  first  place,  that  the 
three  words  king,  prytane,  and  orcJion  were  a  long  time  synonymous. 
So  true  is  this,  that  an  ancient  historian,  Charon  of  Lampsacus, 
writing  a  book  about  the  kings  of  Lacedsemon,  entitled  it  *'  Archons 
and  Prytanes  of  the  Lacedjemonians.-  It  shows  also  that  the 
personage  to  whom  was  applied  indifferently  one  of  these  three 
names  —  perhaps  all  of  them  at  the  same  time  —  was  the  priest 
of  the  city,  and  that  the  worship  of  the  public  hearth  was  the 
source  of  his  dignity  and  power. 

This  sacerdotal  character  of  primitive  royalty  is  clearly  indicated 
by  the  ancient  writers.  In  .^schylus  the  daughters  of  Danaus 
address  the  king  of  Argos  in  these  terms :  "Thou  art  the  supreme 
prytane,  and  watchest  over  the  hearth  of  this  country."  ^  In 
Euripides,  Orestes,  the  murderer  of  his  mother,  says  to  ]Menelaus, 
"It  is  just  that  I,  the  son  of  Agamemnon,  should  reign  at  Argos." 
And  Menelaus  replies,  "Art  thou,  then,  fit,  —  thou,  a  murderer, 
—  to  touch  the  vessels  of  lustral  water  for  the  sacrifices  ?  Art  thou 
fit  to  slay  the  victims?"^  The  principal  office  of  a  king  was, 
therefore,  to  perform  religious  ceremonies.  An  ancient  king  of 
Sicyon  was  deposed  because,  having  soiled  his  hands  by  a  murder, 
he  was  no  longer  in  a  condition  to  offer  the  sacrifices.^  Being  no 
longer  fit  for  a  priest,  he  could  no  longer  be  king. 

Homer  and  Virgil  represent  the  kings  as  continually  occupied 
with  sacred  ceremonies.  We  know  from  Demosthenes  that  the 
ancient  kings  of  Attica  performed  themselves  all  the  sacrifices  that 
were  prescribed  by  the  religion  of  the  city ;  and  from  Xenophon 
that  the  kings  of  Sparta  were  the  chiefs  of  the  Lacedaemonian 
religion.^  The  Etruscan.  Lucumones  were,  at  the  same  time, 
magistrates,  military  chiefs,  and  pontiffs.'^ 

The  case  was  not  at  all  different  with  the  Roman  kings.  Tra- 
dition always  represents  them  as  priests.  The  first  was  Romulus, 
who  was  acquainted  with  the  science  of  augury,  and  who  founded 
the   city   in   accordance   with   religious   rites.     The   second   was 

1  Aristotle,  "Polit.,"  VII.  5,  11  (VI.  8).     Comp.  Diomjsius,  II.  65. 

-  Suidas,  V.  Xdpuiv.  ^  ^sch.,  ''Supp.,"  361  (357). 

'^Euripides,  '''Orestes,"  1605. 

6  Nic.  Damas.,  "Frag.  Hist.  Gr.,"  t.  III.  p.  394. 

^Demosthenes,  "in  Neser."     Xenophon,  "Gov.  Laced.,"  13. 

^  Virgil,  X.  175.     Livy,  V.  1.     Ccnsorinus,  4. 


Chap.  IV,  §  2.]  CHIEFTAIN RY   AND   KINGSHIP  101 

Numa :  he  fulfilled,  Livy  tells  us,  the  greater  part  of  the  priestly 
functions ;  but  he  foresaw  that  his  successors,  often  having  wars 
to  maintain,  would  not  always  be  able  to  take  care  of  the  sacrifices, 
and  instituted  the  flamens  to  replace  the  kings  when  the  latter  were 
absent  from  Rome.  Thus  the  Roman  priesthood  was  only  an 
emanation  from  the  primitive  royalty. 

These  king-priests  were  inaugurated  with  a  religious  ceremonial. 
The  new  king,  being  conducted  to  the  summit  of  the  Capitoline 
Hill,  was  seated  upon  a  stone  seat,  his  face  turned  towards  the 
south.  On  his  left  was  seated  an  augur,  his  head  covered  with 
sacred  fillets,  and  holding  in  his  hand  the  augur's  staff.  He 
marked  off  certain  lines  in  the  heavens,  pronounced  a  prayer,  and, 
placing  his  hand  upon  the  king's  head,  supplicated  the  gods  to  show, 
by  a  visible  sign,  that  this  chief  was  agreeable  to  them.  Then, 
as  soon  as  a  flash  of  lightning  or  a  flight  of  birds  had  manifested  the 
will  of  the  gods,  the  new  king  took  possession  of  his  charge.  Livy 
describes  this  ceremony  for  the  installation  of  Xuma ;  Dionysius 
assures  us  that  it  took  place  for  all  the  kings,  and  after  the  kings, 
for  the  consuls ;  he  adds  that  it  was  still  performed  in  his  time.^ 
There  was  a  reason  for  such  a  custom ;  as  the  king  was  to  be  su- 
preme chief  of  the  religion,  and  the  safety  of  the  city  was  to  depend 
upon  his  prayers  and  sacrifices,  it  was  important  to  make  sure, 
in  the  first  place,  that  this  king  was  accepted  by  the  gods. 

The  ancients  have  left  us  no  account  of  the  manner  in  which  the 
Spartan  kings  were  elected ;  but  we  may  be  certain  that  the  will 
of  the  gods  was  consulted  in  the  election.  We  can  even  see  from 
old  customs  which  survived  to  the  end  of  the  history  of  Sparta, 
that  the  ceremony  by  which  the  gods  were  consulted  was  renewed 
every  nine  years  ;  so  fearfid  were  they  that  the  king  might  lose  the 
favor  of  the  divinity.  "Every  nine  years,"  says  Plutarch,  "the 
Ephors  chose  a  very  clear  night,  but  without  a  moon,  and  sat  in 
silence,  with  their  eyes  fixed  upon  the  heavens.  If  they  saw  a 
star  cross  from  one  quarter  of  the  heavens  to  the  other,  this  in- 
dicated that  their  kings  were  guilty  of  some  neglect  of  the  gods. 
The  kings  were  then  suspended  from  their  duties  till  an  oracle 
came  from  Delphi  to  relieve  them  from  their  forfeiture."  - 

2.  Political  Authority 

Just  as  in  the  family  the  authority  was  inherent  in  the  priest- 
hood, and  the  father,  as  head  of  the  domestic  worship,  was  at  the 

1  Livy,  I.  18.     Dionysius,  II.  G;    IV.  89.  -  Plutarch,  "Agis,"  11. 


102  LAW   AND   THE    STATE  [Part  I. 

same  time  judge  and  master,  so  the  high  priest  of  the  city  was  at 
the  same  time  its  political  chief.  The  altar  —  to  borrow  an  ex- 
pression of  Aristotle  —  conferred  dignity  and  power  upon  him. 
There  is  nothing  to  surprise  us  in  this  confusion  of  the  priesthood 
and  the  civil  power.  We  find  it  at  the  beginning  of  almost  all 
societies,  either  because  during  the  infancy  of  a  people  nothing  but 
religion  will  command  their  obedience,  or  because  our  nature  feels 
the  need  of  not  submitting  to  any  other  power  than  that  of  a  moral 
idea. 

We  have  seen  how  the  religion  of  the  city  was  mixed  up  with 
everything.  Man  felt  himself  at  every  moment  dependent  upon 
his  gods,  and  consequently  upon  this  priest,  who  was  placed  be- 
tween them  and  himself.  This  priest  watched  over  the  sacred  fire  ; 
it  was,  as  Pindar  says,  his  daily  worship  that  saved  the  city  every 
day.^  He  it  was  who  knew  the  formulas  and  prayers  which  the 
gods  could  not  resist ;  at  the  moment  of  combat,  he  it  was  who 
slew  the  victim,  and  drew  upon  the  army  the  protection  of  the  gods. 
It  was  very  natural  that  a  man  armed  with  such  a  power  should  be 
accepted  and  recognized  as  a  leader.  From  the  fact  that  religion 
had  so  great  a  part  in  the  government,  in  the  courts,  and  in  war, 
it  necessarily  followed  that  the  priest  was  at  the  same  time  magis- 
trate, judge,  and  military  chief.  "The  kings  of  Sparta,"  says 
Aristotle,^  "  have  tliree  attributes :  they  perform  the  sacrifices, 
they  command  in  war,  and  they  administer  justice."  Dionysius 
of  Halicarnassus  expresses  himself  in  the  same  manner  regarding 
the  kings  of  Rome. 

The  constitutional  rules  of  this  monarchy  were  very  simple ;  it 
was  not  necessary  to  seek  long  for  them  ;  they  flowed  from  the  rules 
of  the  worship  themselves.  The  founder,  who  had  established  the 
sacred  fire,  was  naturally  the  first  priest.  Hereditary  succession 
was  the  constant  rule,  in  the  beginning,  for  the  transmission  of 
this  worship.  Whether  the  sacred  fire  was  that  of  a  family  or  that 
of  a  city,  religion  prescribed  that  the  care  of  supporting  it  should 
always  pass  from  father  to  son.  The  priesthood  was  therefore 
hereditary,  and  the  power  went  with  it.^ 

A  well-known  fact  in  the  history  of  Greece  proves,  in  a  striking 
manner  that,  in  the  beginning,  the  kingly  office  belonged  to  the  man 
who  set  up  the  hearth  of  the  city.  We  know  that  the  population 
of  the  Ionian  colonies  was  not  composed  of  Athenians,  but  that  it 

1  Pindar,  "Nem.,"  XI.  5.  =  Aristotle,  "Polities,"  III.  9. 

3  We  speak  here  only  of  the  early  ages  of  cities.  We  shall  see,  farther 
on,  that  a  time  came  when  hereditary  succession  ceased  to  be  the  rule, 
and  we  shall  explain  why  at  Rome  royalty  was  not  hereditary. 


Chap.  IV,  §  2.]  CHIEFTAINRY   AND   KINGSHIP  103 

was  a  mixture  of  Pelasgians,  ^Eolians,  Abantes,  and  Cadmeans. 
Yet  all  the  hearths  of  the  cities  were  placed  by  the  members  of  the 
religious  family  of  Codrus. 

It  followed  that  these  colonists,  instead  of  having  for  leaders 
men  of  their  own  race,  —  the  Pelasgi  a  Pelasgian,  the  Abantes  an 
Abantian,  the  .Eolians  an  .Eolian,  —  all  gave  the  royalty  in  their 
twelve  cities  to  the  Codridse.'  Assuredly  these  persons  had  not 
acquired  their  authority  by  force,  for  they  were  almost  the  only 
Athenians  in  this  numerous  agglomeration.  But  as  they  had  es- 
tablished the  sacred  fires,  it  was  their  office  to  maintain  them. 
The  royalty  was,  therefore,  bestowed  upon  them  without  a  contest, 
and  remained  hereditary  in  their  families.  Battus  had  founded 
Cyrene  in  Africa ;  and  the  Battiadte  were  a  long  time  in  possession 
of  the  royal  dignity  there.  Protis  founded  ^Marseilles ;  and  the 
Protiadse,  from  father  to  son,  performed  the  priestly  office  there, 
and  enjoyed  great  privileges. 

It  was  not  force,  then,  that  created  chiefs  and  kings  in  those 
ancient  cities.  It  would  not  be  correct  to  say  that  the  first  man 
who  was  king  there  was  a  luck}-  soldier.  Authority  flowed  from 
the  worship  of  the  sacred  fire.  Religion  created  the  king  in  the 
city,  as  it  had  made  the  family  chief  in  the  house.  A  belief,  an 
unquestionable  and  imperious  belief,  declared  that  the  hereditary 
priest  of  the  hearth  was  the  depositary  of  the  holy  duties  and  the 
guardian  of  the  gods.  How  could  one  hesitate  to  obey  such  a 
man  ?  A  king  was  a  sacred  being ;  ^aaiXel^  lepol,  says  Pindar. 
Men  saw  in  him,  not  a  complete  god,  but  at  least  "the  most  power- 
ful man  to  call  down  the  anger  of  the  gods";  ^  the  man  without 
whose  aid  no  prayer  was  heard,  no  sacrifice  accepted. 

This  royalty,  semi-religious,  semi-political,  was  established  in 
all  cities,  from  their  foundation,  without  effort  on  the  part  of  the 
kings,  without  resistance  on  the  part  of  the  subjects.  We  do  not 
see  at  the  origin  of  the  ancient  nations  those  fluctuations  and 
struggles  which  mark  the  painful  establishment  of  modern  societies. 


1  Herodotus,  I.  142-148.     Pausanias,  VI.     Strabo. 
^Sophocles,  "CEdipus  Rex,"  34. 


Chapter  V 

RELIGION   AND   LAW 

Section  1 

RELIGIOUS   ORIGIN    OF   ANCIENT    LAW » 

Among  the  Greeks  and  Romans,  as  among  the  Hindus,  law  was 
atfirst  a^paxt  of  JieJigioii.,  The  ancient  codes  of  the  cities  were  a 
collection  of  rites,  hturgical  directions,  and  prayers,  joined  with 
legislative  regulations.  The  laws  concerning  property  and  those 
concerning  succession  were  scattered  about  in  the  midst  of  rules 
for  sacrifices,  for  burial,  and  for  the  worship  of  the  dead. 

What  remains  to  us  of  the  oldest  laws  of  Rome,  which  were  called 
the  Royal  Laws,  relates  as  often  to  the  wgcsliip  as  to  the  relations 
of  civil  life.  One  forbade  a  guilty  woman  to  approach  the  altars ; 
another  forbade  certain  dishes  to  be  served  in  the  sacred  repasts ; 
a  third  prescribed  what  religious  ceremon5'  a  victorious  general 
ought  to  perform  on  re-entering  the  city.  The  code  of  the  Twelve 
Tables,  although  more  recent,  still  contains  minute  regulations 
concerning  the  religious  rites  of  sepulture.  The  work  of  Solon  was 
at  the  same  time  a  code,  a  constitution,  and  a  ritual ;  it  regulated 
the  order  of  sacrifices,  and  the  price  of  victims,  as  well  as  the  mar- 
riage rites  and  the  worship  of  the  dead. 
.  Cicero,  in  his  Laws,  traces  a  plan  of  legislation  which  is  not  en- 
tirely imaginary.  In  the  substance  as  in  the  form  of  his  code,  he 
imitates  the  ancient  legislators.  Now,  these  are  the  first  laws  that 
he  writes  :  "  Let  men  approach  the  gods  with  purity ;  let  the  temples 
of  the  ancestors  and  the  dwelling  of  the  Lares  be  kept  up ;  let  the 
priests  employ  in  the  sacred  repasts  only  the  prescribed  kinds  of 
food  ;  let  every  one  offer  to  the  Manes  the  worship  that  is  due  them." 
Assuredly  the  Roman  philosopher  troubled  himself  little  about  the 
old  religion  of  the  Lares  and  Manes ;  but  he  was  tracing  a  code  in 

MBy  FtrsTEL  DE  CouLANGEs,  "The  Anmerit  City;"  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

104 


Chap.  V,  §  I'.J  RELIGION   AND    LAW  107 

imitation  nat  a  unanimous  vote  was  sufficient  to  make  a  law  bind- 
insert  rul^ecision  of  tiie  people  required  to  be  ratified  by  the  pon- 

At  Ro  the  augurs  were  required  to  attest  that  the  gods  were 
pontiff  e  to  the  proposed  law.^ 

could  k  ay,  when  the  tribunes  of  the  people  wished  to  have  a  law 
"religion  by  the  assembly  of  the  tribes,  a  patrician  said  to  them, 
As  ther''ight  have  you  to  make  a  new  law,  or  to  touch  existing  laws  ? 
*Teligiorho  have  not  the  auspices,  you,  who,  in  your  assemblies, 
decisiol  no  religious  acts,  what  have  you  in  common  with  religion 
judge?-'red  things,  among  which  must  be  reckoned  the  laws  ? "  ^ 
marpni  this  we  can  understand  the  respect  and  attachment  which 
wertLncients  long  had  for  their  laws.     In  them  they  saw  no  human 
as  "k,  but  one  whose  origin  was  holy^-^^It  was  no  vain  word  when 
talto  said,  "To  obey  the  laws  is  to  obey  the  gods.^^He  does  no 
iiore  than  to  express  the  Greek  idea,  when,  in  Crito,  he  exhibits 
Socrates  giving  his  life  because  the  laws  demanded  it  of  him.     Be- 
fore Socrates,  there  was  written  upon  the  rock  of  Thermopylae, 
^'Passer-by,  go  and  tell  Sparta  that  we  lie  here  in  obedience  to  its 
laws."     The  law  among  the  ancients  was  always  holy,  and  in  the 
time  of  royalty  it  was  the  queen  of  the  kings.     In  the  time  of  the 
republic  it  was  the  queen  of   the   people.     To   disobey  it  was 
sacrilege. 

In  principle  the  laws  were  immutable,  since  they  wer^-divine 
It  is  worthy  of  '•"  lark  that  they  were  never  aJjrrOgated.  Men 
could  indeed  make  new  ones,  but  old  G^iss  still  remained,  howcAer 
they  might  conflict  with  the  new,  ones..  The  code  of  Draco  was  not 
abolished  by  that  qf  Solon  ;  ^  nor  were  the  Royal  Laws  bj'  those  of 
the  Twehe  Tables<^  The  stone  on  which  the  laws  were  engraved 
was  inviolable  ;y<5r,  at  most,  the  least  scrupulous  only  thought  them- 
selves permitted  to  turn  it  round.  This  principle  was  the  great 
cause  of  tl^e  confu=^io'i  which  is  observabk  among  ancient  laws. 

Contrpcflictory  la\\s  and  those  of  different  epochs  were  found 
together,  and  all  claimed  respect.  In  an  oration  of  Isaeus  we  find 
two  men  contesting  an  inheritance  ;  each  quotes  a  law  in  his  favor  ; 
the  two  laws  are  absolute  contraries,  and  are  equally  sacred.  In 
the  same  mor ner  the  code  of  ]\Iaim  preser\es  the  ancient  law  which 
establishes  primogeniture>;^nd  has  another  by  the  side  of  it  which 
enjoins  an  equal  division  among  the  brothers. 

The  ancient  law  never  gave  any  reasons.  Why  should  it?  It 
was  not  bound  to  give  them  ;  it  existed  because  the  gods  had  made 

^fbionysius,  IX.  41  ;   IX.  49.  =  Dionysius,  X.  4.     Livy,  III.  31. 

'  Andocides,  I.  82,  83.     Demosthenes,  "in  Everg.,"  71. 


108  LAW   AND   THE   STATE  [Part  I. 

^j  it.'^t  was  not  discussed  —  it  was  imposed-V^t  was  a  work  of  au- 
~~"    I  thority ;  men  obeyed  it  because  they  had  faith  in  it^Xf 

During  long  generations  the  laws  were  not  written ;   they  were 
transmitted  from  father  to  son,  with  the  creed  and  the  formula  of 
prayer.     They  were  a  sacred  tradition,  which  was  perpetuated 
^5», around  the  family  hearth,  or  the  hearth  of  the  city* 

/  The  da}'  on  which  men  began  to  commit  them  to  writing,  they 
/  ^C(/nsigned  them  to  the  sacred  booksf  to  the  rituals,  among  prayers 
and  ceremonies^  Varro  cites  an  ancient  law  of  the  city  of  Tuscu- 
lum,  and  adds  that  he  read  it  in  the  sacred  books  of  that  city.^ 
Dionysius  of  Halicarnassus,  who  had  consulted  the  original  docu- 
ments, says  that  before  the  time  of  the  Decemvirs  all  the  written 
laws  at  Rome  were  to  be  found  in  the  books  of  the  priests.-  Later 
the  laws  were  removed  from  the  rituals,  and  were  written  by  them- 
selves ;  but  the  custom  of  depositing  them  in  a  temple  continued, 
and  priests  had  the  care  of  them. 

Written  or  unwritten,  these  laws  were  always  formulated  into 
very  brief  sentences,  which  may  be  compared  in  form  to  the  verses 
of  Leviticus,  or  the  slocas  of  the  book  of  Manu.  It  is  quite  prob- 
able, even,  that  the  laws  were  rhythmical.^  According  to  Aris- 
totle, 1  otbre  the  laws  were  written,  they  were  sung."*  Traces  of 
this  (;ustom  have  remained  in  language ;  the  Romans  called  the 
\a\vs~csrmina  —  verses ;    the  ^^-eeks  said  voji^l  —  songs.^ 

These  ancieiit-verses  were  invariable  texts.  To  change  a  letter 
of  them,  to  displace  a  wo«^,  to  alter  the  rhythm,  was  to  destroy 
the  law  itself,  by  destroying  the  bvaj^red  form  under  vhicli  it  was 
revealed  to  man.  The  law  wflB  like  pray^bir,  which  was  greeable 
to  the  divinity  only  on  Condition  that  it  was  re^^ited  correctly,  and 
which  became  impious  if  a  single  word  in  it  w??^  changed ><^  In 
primitive  law,  the  exterior,  the  letter,  is  everything  ;  there  is  no 
need  of  s<  »king  the  sense  or  spirit  of  if>-  The  value  of  th^e  law  is  not 
in  the  nn  il  principle  that  it  contains,  but  in  the  words  that  make 
up  the  fc      'ula,3^ts  force  is  in  the  sacred  words  that  comj^ose  ij^^ 

Among    he  ancients,  and  especially  at  Rome,  the  idea  qf  law 
was  inseparably  connected  with  certain  sacramental  word^y  If,      l^ , 
for  example,  it  was  a  question  of  contract,  one  was  expected  to  ^a,y, 
Dari  s'pondes?  and  the  other  was  expected  to  reply,  Spondeo.     If 

'  Varro,  "L.  L.,"  VI.  16.  ^  DionT/sius,  X.  1. 

3  ^lian,  '''V.  H.,"  II.  39.  '  Aristotle,  "Probl.,"  XIX.  28. 

5  N^/uw,  to   divide;     v6ij.os,  division,  measure,  rlivthm,  song.      See  Phi- 
tarrh,  "De  Musiea,"  p.  1133;    Pindar,  "Pyth.,"  XII.  41 ;    '  i'ragm.."  199 
p.iEdit.  Hei/ne).     Scholiast  on  Aristophanes,  "Knights,"  9;   N6fiot  KaXoOvrm 
u  et's  deovs   i'lfxiioi. 


Chap.  V,  §  1.]  RELIGION  AND   lAW  109 

these  words  were  not  pronounced,  there  was  no  contract.  In  vain 
the  creditor  came  to  demand  payment  of  the  debt  —  the  debtor 
owed  nothing;  for  what  placed  a  man  under  obhgation  in  this 
ancient  law  was  not  conscience,  or  the  sentiment  of  justice ;  it 
was  the  sacred  formula^s  When  this  formula  was  pronounced 
between  two  men,  it  established  between  them  a  legal  obligation. 
Where  there  was  no  formula,  the  obligation  did  not  exist. 

The  strange  forms  of  ancient  Roman  legal  procedure  would,  not     t^  rt 
surprise  us  if  we  but  recollected  that  ancient  law  was  a  religion,  a  ' 

sacred  text,  and  justice  a  collection  of  rites.><-The  plaintiff  pursues 
with  the  law  —  agit  lege.  By  the  text  of  the  law  he  seizes  his  adver- 
sary :  but  let  him  be  on  his  guard  ;  to  have  the  law  on  his  side,  he 
must  know  its  terms,  and  pronounce  them  exactly.  If  he  speaks 
one  word  for  another,  the  law  exists  no  longer  for  him,  and  cannot 
defend  hiin,.>^-  Gaius  gives  an  account  of  a  man  whose  \'ines  had  been 
cut  by  his  neighbor ;  the  fact  was  settled  ;  he  pronounced  the  law. 
But  the  law  said  trees ;   he  pronounced  vines,  and  lost  his  case. 

Repeating  the  law  was  not  sufficient.  There  was  also  needed  an 
accompaniment  of  exterior  signs,  which  were,  so  to  say,  the  rites  of 
this  religious  ceremony  called  a  contract,  or  a  case  in  law.  For  this 
reason  at  every  sale  the  little  piece  of  copper  and  the  balance  were 
employed.  To  buy  an  article,  it  was  necessary  to  touch  it  with 
the  hand  —  ma?icipatio ;  and  if  there  was  a  dispute  about  a  piece 
of  property,  there  was  a  feigned  combat  —  manuum  consertio. 
Hence  were  derived  the  forms  of  liberation,  those  of  emancipation, 
those  of  a  legal  action,  and  all  the  pantomime  of  legal  procedure. 

As  law  was  a  part  of  religion,  it  participated  in  the  mysterious  ^^  >'^'\'  * 
character  of  all  this  religion  of  the  cities.  The  legal  formulas,  like  ^  ' 
those  of  religion,  were  kept  secret.  They  wete  concealed  from  the 
stranger,  and  even  from  the  plebeian-X^his  was  not  because  the 
patricians  had  calculated  that  they  shomd  possess  a  great  power 
in  the  exclusive  knowledge  of  the  law,  but  because  the  law,  by  its 
origin  and  nature,  long  appeared  to  be  a  mystery,  to  which  one 
could  be  initiated  only  after  having  first  been  initiated  into  the 
national  worship  and  the  domestic  worship^^ 

The  religious  origin  of  ancient  law  also  explains  to  us  one  of  the 
principal  characteristics  of  this  law.  Religion  was  purely  civUr^ 
that  is  to  say,  peculiar  to  each  city.^^here  could  flow  from  it, 
then  fore,  only  a  civil  law.XBut  it  is  necessary  to  distinguish  the 
sense  which  this  word  had  among  the  ancients.  When  they  said 
that  the  law  was  civil,  — jus  civile,  vo/jloi  ttoXltlkoI,  — they  did  not 
understand  simply  that  every  city  had  its  code^as  in  our  day  every 


110  LAW   AND   THE    STATE  [Part  I. 

^«<^'^^  state  has  a  code.     They  meant  that  their  laws  had  no  force,  or 

^^1^      power,  except  between  the  members  of  the  same  cityJ^To  live  in 

a  city  did  not  make  one  subject  to  its  laws  and  place  him  under 

their  protection ;   one  had  to  be  a  citizen.     The  law  did  not  exist 

for  the  slavey'oio  more  did  it  exist  for  the  stranger. 

We  shall  see,  lurther  along,  that  the  stranger  domiciled  in  a  city 
could  be  neither  a  proprietor  there,  nor  an  heir,  nor  a  testator ;  he 
could  not  make  a  contract  of  any  sortVor  appear  before  the  ordi- 
nary tribunals  of  the  citizens.  At  Athens,  if  he  happened  to  be  the 
creditor  of  a  citizen,  he  could  not  sue  him  in  the  courts  for  the  pay- 
ment of  the  debt,  as  the  law  recognized  no  contract  as  valid  for 
him. 
IC6^  These  provisions  of  ancient  law  were  perfectly  logical.     Law 

^  was  not  born  of  the  idea  of  rii^ice,  but  of  religion,  and  was  not 

so  conceived  as  going  beyond  itX  In  order  that  there  should  be  a 
'  'legal  relation  between  two  men,  it  was  necessary  that  there  should 
■^  already  exist  a  religious  relatioivKjthat  is  to  say,  that  they  should 

worship  at  the  same  hearth  and  have  the  same  sacrifices"><^Vhen 
this  religious  community  did  not  exist,  it  did  not  seem  that  there 
could  be  an}'  legal  relationJ\Now,  neither  the  stranger  nor  the 
slave  had  any  part  in  the  religion  of  the  cit;y>\A  foreigner  and  a 
citizen  might  live  side  by  side  during  long  years,  without  one's 
thinking  of  the  possibility  of  a  legal  relation  being  established  be- 
tween them.  Law  was  nothing  more  than  one  phase  of  religioiiX 
Where  there  was  no  common  religion,  there  was  no  common  law.^' 

Section  2 

RELIGIOUS    ELEMENT    IN   HINDU   LAW  i 

The  most  ancient  of  the  books  containing  the  sacred  laws  of  the 
Hindus  appear  to  me  to  throw  little  light  on  the  absolute  origin  of 
law.  Some  system  of  actual  observance,  some  system  of  custom 
or  usage,  must  lie  behind  them ;  and  it  is  a  very  plausible  conjec- 
ture that  it  was  not  unlike  the  existing  very  imperfectly  sacerdotal- 
ised  customary  law  of  the  Hindus  in  the  Punjab.  But  what  they 
do  show  is,  if  not  the  beginning  of  law,  the  beginning  of  lawyers. 
They  enable  us  to  see  how  law  was  first  regarded,  as  a  definite 
0^^^  subject  of  thought  by  a  special  learned  class :  and  this  class  con- 
sisted of  lawyers  who  were  first  of  all  priests.  XThere  are  signs  of 
the  ancient  identity  of  the  two  professions  in  the  earliest  recorded 

1  [By  Sir  Henry  S.  Maine.     Reprinted  from  "Early  Law  and  Custom," 
by  permission  of  Henry  Holt  and  Company,  New  York.] 


Chap.  V,  §  2.]  KELIGION   AND   LAW  111 

usages  of  several  races,  Celts,  Romans  and  Greeks.  Nobody, 
for  example,  will  understand  the  ancient  Roman  lawyer,  with  that 
obstinate  adherence  of  his  to  texts  which  has  characterised  his 
profession  during  so  many  centuries,  and  that  method  of  stating 
his  facts  in  inflexible  formulas  which  has  only  just  died  out  in  this 
country,  unlessjt  is  realised  that  the  jurisconsult  sprang  from  the 
pontiff  or  priestyNA.ll  through  the  jNIiddle  Ages  the  lawyer  who  was 
avowedly  a  priest  held  his  own  against  the  lawyer  who  professed  to 
be  a  layman ;  and  ours  is  the  only  country  in  which,  owing  to  the 
peculiar  turn  of  our  legal  history,  it  is  difficult  to  see  that,  on  the 
v\hole,  the  canonist  exercised  as  much  influence  on  the  course  of 
legal  development  as  the  legist  or  civilian.  If  the  Roman  Empire 
had  merely  transmitted  its  administrative  system  to  Western 
Europe,  and  if  it^  had  not  bequeathed  to  it  a  coherent  bodyujl 
codified_secular_law  maldng  considerable  approach  to  complete- 
ness, it  is  very  doubtful  Vvdiether  the  general  law  of  the  West  would 
not  even  now  reflect  a  particular  set  of  religious  ideas  as  distinctly 
as  tlie  Hindu  law  reflects  the  sacerdotal  conceptions  of  the  Brah- 
mans^ 

It  is  necessary  first,  of  all,  to  observe  how  the  priestly  character 
of  the  Brahmanical  authors  of  the  law-books  aftected  their  view  of 
conduct,  a  word  which  must  be  used  at  the  outset  in  preference  to 
'law.'  Shortly,  this  view  is  intimately  affected  throughout  by 
their  belief  as  to  the  lot  which  awaits  human  beings  after  death. 
This  lot  will  be  made  up  of  various  experiences,  some  of  which 
correspond  to  direct  reward  or  punishment  in  Heaven  or  Hell  as 
conceived  by  the  Western  religions.  But  the  Hindu  belief  con- 
cerning the  posthumous  state  of  man  and  the  Buddhist  belief 
which  has  mainly  sprung  from  it,  differ  from  the  most  widely 
diffused  Western  beliefs  in  that  the  Transmigration  of  Souls  fills 
as  large  a  space  as  direct  reward  and  punishment,  and  in  that 
rewards  and  punishments  in  all  their  forms  are  regarded,  not  as 
eternal  but  as  essentially  transitory.  .  .  .  When  a  man  still  con- 
taminated by  impurity  dies,  his  spirit  passes  through  a  series  of 
purgatories ;  from  the  last  of  these  it  escapes  to  clothe  itself  with 
one  animal  shape  after  another,  and  at  last  it  finds  embodiment  in 
a  human  frame,  which  at  first  will  probably  be  frail  or  sickly. 
But,  after  a  second  birth  through  the  study  of  the  Scriptures,  the 
virtuous  at  death  pass  straight  into  Heaven,  where  their  stock  of 
virtue  will  keep  them  for  long  ages;  but  it  will  gradually  wear 
out,  until  some  remnant  of  it  carries  them  back  to  earth,  to  reap- 
pear among  the  prosperous  and  the  powerful.     '  ]Men  of  all  castes. 


112  L^W   AND   THE   STATE  [Part  I. 

if  they  fulfil  their  assigned  duties,  enjoy  in  Heaven  the  highest 
imperishable  bliss.  Afterwards,  when  a  man  who  has  fulfilled  his 
duties  returns  to  this  world,  he  obtains,  by  virtue  of  a  remainder  of 
merit,  birth  in  a  distinguished  family,  beauty  of  form,  beauty  of 
complexion,  strength,  aptitude  for  learning,  wisdom,  wealth,  and 
the  gift  of  fulfilling  the  laws  of  his  caste  or  order.  Therefore  in 
both  worlds  he  dwells  in  happiness,  rolling  like  a  wheel  from  one 
world  to  the  other'  (Apastamba,  ii.  i.  2.  2  and  3).  Even  the 
gods  in  Heaven,  who  are  looked  upon  as  not  much  more  than  men 
of  extraordinary  virtue,  will  in  time  exhaust  their  store  of  merit 
and  pass  out  of  blessedness.  'It  is  by  favour  of  the  Brahmans,' 
says  Vishnu  (xix.  22),  'that  the  gods  reside  in  Heaven.' 

The  Wheel  mentioned  in  the  above  passage  from  Apastamba 
is  a  favourite  image  with  these  writers.  They  figure  existence  as 
a  wheel  spinning  round.  Religious  pictures,  representing  the 
circle  of  life  with  its  various  compartments,  with  Heaven  at  the 
top  and  Hell  at  the  bottom,  and  with  human  and  animal  existence 
at  the  sides,  are  common  in  the  East ;  but  though  they  are  not 
unknovv'n  to  Hindus,  they  are  more  frequently  found  among 
Buddhists,  who  must  have  borrowed  the  symbol  of  the  Wheel 
from  an  older  Hinduism,  and  who  appear  to  attach  to  it  a  special 
spiritual  significance.   .   .   . 

...  It  is  very  probable  that  these  beliefs  were  themselves  com- 
pounded of  divers  more  ancient  parts,  and  that  direct  reward  or 
punishment,  and  indirect  reward  or  punishment  by  transmigra- 
tion, did  not  originally  belong  to  the  same  body  of  doctrine. 
Heaven  and  Hell  and  the  Transmigration  of  Souls  are,  however, 
all  referred  to  in  the  oldest  of  the  law  treatises,  though  briefly  and 
slightly.  In  the  more  recent  writings  (some  of  them,  however, 
not  so  modern  as  INIanu)  these  subjects  occupy  a  great  space,  and 
have  been  vastly  amplified  by  gloomy  and  fantastic  imagination. 
Heaven,  as  is  not  unusual  in  religious  systems,  is  but  faintly 
sketched ;  but  the  Hells,  or,  as  they  would  more  properly  be  called, 
the  Purgatories  (since  they  are  essentially  transient),  are  de- 
scribed with  the  utmost  minuteness  of  detail.  They  are  twenty- 
two  in  number,  each  applying  a  new  variety  of  physical  or  moral 
pain.   .   .   . 

The  sojourn  of  the  sinful  soul  in  each  of  these  places  of  punish- 
ment is,  as  I  have  said,  always  terminable,  but  its  length  is  ex- 
pressed in  language  suited  to  astronomical  magnitudes.  If,  for 
example,  a  Brahman  be  slain,  as  many  as  are  the  pellets  of  dust 
which  his  blood  makes  on  the  soil  —  that  is  to  say,  on  the  burnt-up 


Chap.  V,  §  2.]  RELIGION  AND   LAW  113 

soil  of  India  —  so  many  are  the  periods  of  a  thousand  years  the 
slayer  must  pass  in  Hell  (Manu,  xi.  208).  The  duration  of  pun- 
ishment is  imagined  by  the  Buddhists  with  even  greater  extrava- 
gance ;  and  indeed  on  all  these  subjects  they  seem  to  have  outdone 
the  doctrine  of  the  Hindus.  The  frightful  Buddhist  pictures  of 
torments  in  hell  are  tolerably  well  known.  They  are  mostly  of 
Chinese  origin,  and  probably  exaggerate  (but  do  not  more  than 
exaggerate)  the  criminal  justice  administered  from  time  immemo- 
rial in  the  great  organised  Chinese  Empire  and  its  dependent  king- 
doms, in  which  the  highest  importance  seems  always  to  have 
been  attached  to  the  deterrent  effects  of  punishment. 

The  series  of  Purgatories,  is,  however,  at  last  worked  through, 
and  the  soul  or  portion  of  life  emerges  to  begin  a  course  of  trans- 
migration which  may  bring  it  again  to  humanity.  ...  It  is  hard 
not  to  smile  at  the  grotesque  particularity  of  detail  with  which  such 
writers  as  Vishnu  and  ^Manu  depict  the  transmigration  of  souls. 
'Criminals  in  the  highest  degree  enter  the  bodies  of  all  plants 
successively.  Mortal  sinners  enter  the  bodies  of  worms  or  insects. 
Minor  offenders  enter  the  bodies  of  birds.  Criminals  in  the  fourth 
degree  enter  the  bodies  of  aquatic  animals.  Those  who  had  com- 
mitted a  crime  affecting  loss  of  caste  enter  the  bodies  of  amphibi- 
ous animals'  (Vishnu,  xliv.  2).  These  general  statements  are 
followed  by  a  prodigious  number  of  others,  mentioning  the  class 
of  creature  into  which  particular  sinners  enter.  There  is  perhaps 
a  natural  fitness  in  some  of  them,  but  others  look  like  arbitrary 
assertions  or  wild  guesses.  One  who  has  appropriated  a  broad 
passage  becomes  a  serpent  living  in  holes.  One  who  has  stolen 
grain  becomes  a  rat.  One  who  has  stolen  water  becomes  a  water- 
fowl. But  what  is  to  be  said  of  the  transformation  of  the  stealer 
of  silk  into  a  partridge ;  of  the  thief  of  linen  into  a  frog ;  of  the 
cattle-stealer  into  an  iguana?  I  may  venture  at  the  same  time 
to  suggest  that  what  seems  to  us  most  difficult  to  understand 
in  these  beliefs  once  appeared  simple  and  natural.  It  has  been 
observed  that  savages  look  upon  the  transmutation  of  one  creature 
into  another  as  almost  an  easy,  everyday  process.  Primitive  men, 
living  constantly  in  the  presence  of  wild  animals,  preying  on  them 
and  preyed  upon  by  them,  do  not  seem  to  have  been  struck  by  the 
immense  superiority  of  the  man  to  the  brute.  They  appear  to 
have  been  impressed  by  the  difference  between  living  things  and 
everything  else,  but  to  have  considered  the  forms  of  animate  being 
as  separated  from  one  another  by  a  very  slight  barrier.    .    .    . 

But  these  Hindu  law-books  have  wrought  up  the  ancient  belief 


114  LAW   AND   THE   STATE  [Part  I. 

into  a  moral  and  theological  philosophy  of  the  greatest  precision 
and  amplitude.  Their  special  principle  is  that  man's  acts  and 
experiences  in  one  form  of  being  determine  the  next.  Whether  he 
will  in  a  future  existence  become  a  plant,  a  reptile,  a  bird,  a 
woman,  a  Brahman,  or  a  semi-divine  sage,  depends  on  himself. 
He  goes  out  of  the  world  what  his  own  deeds  have  made  him  ;  and 
the  impossibility  of  dissociating  the  past  from  the  future  is  declared 
by  these  writers  in  language  of  much  solemnity.  If  a  man  departs 
modified  by  voluntary  sinfulness  or  involuntary  impurity,  and  if 
he  has  not  expelled  the  taint  by  due  penance,  he  will  become  one 
of  the  lowest  creatures ;  if  he  dies  purer  than  he  was  born,  he  may 
reach  the  highest  stage  of  humanity  or  become  indistinguishable 
from  divinity.  The  whole  theory  is  saved  from  contempt  by  its 
power  of  satisfying  moral  cravings,  and  by  the  apparently  complete 
explanation  which  it  offers  of  the  unequal  balance  of  good  and 
evil  in  this  world.    .   .   . 

With  these  explanations,  some  features  of  those  writings  which 
are  at  first  sight  very  perplexing  become  comparatively  intelligible. 
Thus,  they  are  chiefly  called  law-books  because  they  contain 
rules  of  conduct  stated  with  the  utmost  precision.  But  what  hap- 
pens to  a  man  if  he  disobeys  the  rule?  This  is  the  principal 
question  to  the  modern  jurist.  What  is  the  punishment,  or,  as 
the  technical  phrase  is,  the  Sanction  ?  Understood  in  the  modern 
sense,  it  is  hardly  noticed  in  the  oldest  of  these  books.  It  is  in 
fact  to  be  inflicted  in  another  state  of  existence,  and  therefore, 
though  it  may  be  asserted,  no  directions  can  be  given  about  it. 
Thus  the  place  which  in  a  modern  law-book  is  taken  by  the  Sanc- 
tion—  that  is,  by  the  various  penal  consequences  of  refusing  to 
obey  a  law  —  is  taken  in  these  writings  by  Penances.  You  are  to 
punish  yourself  here,  lest  a  worse  thing  happen  to  you  elsewhere. 
These  penances  are  set  forth  in  the  most  uncompromising  language 
and  in  apparent  good  faitji-^  In  one  place,  the  penitent  is  told  to 
mutilate  himself  and  to  walk  on  in  a  particular  direction  till  he 
drops  dead.  In  another  he  is  to  throw  himself  three  times  into  the 
fire,  or  to  go  into  battle  and  expose  himself  as  a  target  to  the  enemy. 
For  one  great  crime  he  is  to  extend  himself  on  a  red-hot  iron  bed, 
or  to  enter  a  hollow  iron  image,  and,  having  lighted  a  fire  on  both 
sides,  to  burn  himself  to  death.  For  the  comparatively  ^'enial 
offence  of  drinking  forbidden  liquor  a  Brahman  is  to  have  boiling 
spirit  poured  down  his  throat.     Other  penances  are  extraordinary 

1  "Apastamba,"    i.    i.    15;    "Gautama,"    xxii ;     "Vishnu,"     xxxiv. 

XXXV. 


Chap.  V,  §  2.]  RELIGION   AND    LAW  115 

from  the  length  and  intricacy  of  the  self-inflictions  which  they  sup- 
pose. The  old  books  hint  a  doubt  here  and  there  as  to  the  efficacy 
of  penance :  what  good  can  it  do,  they  say,  since  the  evil  deed  itself 
remains ;  still,  they  add,  the  authoritative  opinion  is,  that  the 
penance  should  be  performed.  *j\Ian  in  this  world,'  writes 
Gautama  (xix.  2),  'is  polluted  by  a  vile  action,  such  as  sacrificing 
for  men  unworthy  to  offer  a  sacrifice,  eating  forbidden  food, 
speaking  what  ought  not  to  be  spoken,  neglecting  what  is  pre- 
scribed, practising  what  is  forbidden.  They  (i.e.  some  Brahman 
authorities)  are  in  doubt  if  he  shall  perform  a  penance  for  such  a 
deed  or  if  he  shall  not  do  it.  Some  declare  that  he  shall  not  do  it, 
because  the  deed  shall  not  perish.  (But)  the  most  excellent  opinion 
is  that  he  shall  perform  a  penance.'  This  opinion  is  then  sup- 
ported by  copious  quotations  from  the  Hindu  scriptures.  The 
remarkable  thing  is,  that  no  one  of  these  writers  seems  to  feel,  what 
would  be  our  doubt,  whether  anybody  could  be  got  to  perform  the 
severer  penances. 

How  then  does  what  we  should  call  Law  —  that  is,  law,  civil  or 
criminal,  enforced  by  sanctions  or  penalties  to  be  inflicted  in  this 
world  —  first  make  its  appearance  in  these  books  ?  It  appears 
in  connection  with  the  personage  whom  we  call  the  King.  His 
authority  is  more  or  less  assumed  to  exist  in  the  oldest  of  these 
treatises,  but,  all  taken  together,  they  suggest  that  the  alliance 
between  the  King  and  the  Brahmans  was  very  gradually  formed. 
The  most  ancient  of  the  books  give  comparatively  narrow  place  to 
the  royal  authority,  but  the  space  allotted  to  the  King  and  his 
functions  is  always  increasing,  until  in  the  latest  treatises  (such  as 
]\Ianu)  the  whole  duty  of  a  King  is  one  of  the  subjects  treated  of  at 
the  greatest  length  and  with  the  greatest  particularity.  It  may  be. 
observed  that,  with  the  increased  importance  attributed  to  the 
King,  there  is  a  change  in  the  sacerdotal  view  of  his  relation  to  the 
law.  In  what  appear  to  me  to  be  the  most  ancient  portions  of  these 
books,  the  King  is  only  represented  as  the  auxiliary  of  the  spiritual 
director.  He  is  to  complete  and  enforce  penances.  'If  any 
persons,'  says  Apastamba  (ii.  v.  10.  13),  'transgress  the  order  of 
their  spiritual  director,  he  shall  take  them  before  the  King.  The 
King  shall  consult  his  domestic  priest,  who  should  be  learned  in  the 
law  and  in  the  art  of  governing.  He  shall  order  them  to  perform 
the  proper  penance,  if  they  are  Brahmans,  and  reduce  them  to 
reason  by  forcible  means,  except  corporal  punishment  and  servi- 
tude, but  men  of  other  castes,  the  King,  after  examining  their 
actions,  may  punish  even  by  death.'     In  a  later  treatise  (Vishnu, 


116  LAW   AND   THE   STATE  [Part  I. 

III.  2)  the  duties  of  a  King  are  summed  up  in  two  rules :  he  is  to 
protect  his  people ;  he  is  to  keep  the  four  castes,  and  the  four 
orders  of  Student,  Householder,  Hermit,  and  Ascetic,  in  the  prac- 
tice of  their  several  duties ;  or,  in  other  words,  he  is  to  enforce  the 
whole  social  and  religious  system  as  conceived  by  the  sacerdotal 
lawyers.  The  further  progress  of  change  consists  in  the  further 
exaltation  of  the  personage  who  in  the  passage  fromApastamba  is 
called  the  King's  domestic  priest.  In  the  end,  the  law-books  come 
to  contemplate  an  ideal  tribunal  composed  of  the  King,  with 
learned  Brahmans  as  assessors.  The  later  writings  clothe  the 
King  with  right  divine.  He  is  formed  of  eternal  particles  drawn 
from  the  substance  of  the  gods.  'Though  even  a  child,  he  must 
not  be  treated  lightly,  from  an  idea  that  he  is  a  mere  mortal. 
No;  he  is  a  powerful  divinity  who  appears  in  human  shape' 
(Manu,  Yii.  iv.  8).  But  he  has  lost  in  actual  personal  power. 
He  can  only  act  with  the  advice  of  his  Brahman  assessors.  'Just 
punishment  cannot  be  inflicted  by  an  ignorant  and  covetous  King, 
who  has  no  wise  and  virtuous  assistants,  whose  understanding 
has  not  been  improved  and  whose  heart  is  addicted  to  sensuality. 
By  a  King,  wholly  pure,  faithful  to  his  promise,  observant  of  the 
Scriptures,  with  good  assistants  and  sound  understanding,  may 
punishment  be  justly  inflicted  '  (Manu,  vii.  xxx.  31). 

From  this  point  the  law  set  forth  in  these  treatises  becomes  true 
civil  law,  enforced  by  penalties  imposed  in  this  world  by  the  Court 
itself.  The  Brahmans  themselves  no  doubt  from  first  to  last 
claim  a  considerable  benefit  of  clergy.  'Corporal  punishment,' 
it  is  written,  'must  not  be  resorted  to  in  the  case  of  a  Brahman ; 
he  at  most  can  have  his  crime  proclaimed,  or  be  banished,  or  be 
branded.'  At  the  same  time  the  abstract  doctrine  of  punishments 
or  penal  sanctions  found  in  INIanu  (vii.  17  et  seq.)  might  satisfy 
the  English  jurists  who  make  the  sanction  the  principal  ingredient 
in  a  law,  so  uncompromisingly  is  it  declared.  Jeremy  Bentham 
could  hardly  complain  of  such  language  as  this:  'Punishment 
governs  all  mankind  ;  punishment  alone  preserves  them ;  punish- 
ment wakes  when  their  guards  are  asleep ;  if  the  King  punish  not 
the  guilty,  the  stronger  would  oppress  the  weaker,  like  the  fish  in 
the  sea.  The  whole  race  of  man  is  kept  in  order  by  punishment ; 
gods  and  demons,  singers  in  heaven  and  cruel  giants,  birds  and 
serpents,  are  made  capable  by  just  correction  of  their  several 
enjoyments'  (IVIanu,  loc.  cit.).  The  full  consequences  of  juridical 
doctrine  like  this  do  not,  however,  appear  in  such  a  law-book  as 
the  extant  ]Manu,  which,  besides  a  great  deal  of  civil  law,  contains 


Chap.  V,  §  2.]  RELIGION  AND   L.\W  117 

a  mass  of  sacerdotal  rules,  mostly,  as  it  seems  to  me,  in  a  state  of 
dissolution  and  decay.     A  still  later  treatise,  Xarada,^  is  almost 
wholly  a  simple  law-book,  and  one  of  a  very  interesting  kind.     The  ^ 
ancient  Brahmanical  system  has  been  toned  down  and  tempered  ~ '  ^ 
in  all  its  parts  by  the  good  sense  and  equity  of  the  school  of  lawyers  ?^  v&^ 
from  whom  this  book  proceeded.     The  portions  of  it  which  deal  5/?/^4/r 
with  Evidence  appear  to  me  especially  remarkable,  not  only  for  ic/^C 
the  legal  doctrine,  which  (though  the  writer  believes  in  Ordeals)     ^^sf~ 
is  on  the  whole  extremely  modern,  but  for  the  elevation  of  moral       ' 
tone  displayed  in  its  language  on  the  subject  of  true  and  false 
witness,  which  should  be  set  off  against  the  unveracity  attributed 
to  the  modern  Hindu.     *No  relatives,  no  friends,  no  treasures,  be 
they  ever  so  great,  are  able  to  hold  him  back  who  is  about  to  dive 
into   the  tremendous   darkness   of   Hell.     Thy  ancestors   are  in 
suspense  when  thou  art  come  to  give  evidence,  and  ponder  in  their 
mind,  "Wilt  thou  deliver  us  from  Hell  or  precipitate  us  into  it?" 
Truth  is  the  soul  of  man  ;  ever^1:hing  depends  upon  truth.     Strive 
to  acquire  a  better  self  by  speaking  the  truth.     Thy  whole  lifetime, 
from  the  night  in  which  thou  wert  born  up  to  the  night  in  which 
thou  wilt  die,  has  been  spent  in  vain  if  thou  givest  false  evidence. 
There  is  no  higher  virtue  than  veracity;    nor  is  there  a  greater 
crime   than   falsehood.     One   must   speak    the   truth,   therefore, 
especially  when  asked  to  bear  testimony'  (Xarada,   pp.  42,  43, 
Jolly).     The  somewhat  analogous  passage  in  INIanu  (viii.  112)  is 
defaced  by  the  often  reprobated  qualification,  '  In  case  of  a  prom- 
ise made  for  the  preservation  of  a  Brahman,  it  is  no  deadbTsriT 
to  take  a  light  oath.' 

The  difficulties  under  which  the  student  of  the  so-called  Sacred 
Laws  of  the  Hindus  has  so  long  laboured  have  been  almost  entirely 
caused  by  the  transitional  character  of  the  book  which  was  first 
introduced  to  European  scholarship  as  the  original  source  of  Hindu 
Law.  If  the  sample  of  this  branch  of  Hindu  literature  first 
translated  into  a  Western  language  had  been  Narada,  it  would 
have  been  regarded  as  a  law-book  of  a  familiar  type,  and  the  traces 
of  sacerdotal  influence  which  are  to  be  found  in  it  would  probably 
have  been  neglected.  If,  on  the  other  hand,  the  book  first  made 
accessible  had  been  Gautama,  or  Baudhayana,  or  Apastamba,  it 
would  probably  has  been  set  down  at  once  as  a  manual  of  practical 
religious  conduct,  the  Whole  Duty  of  a  Hindu  ;  the  law  contained 
in  it  would  probably  have  been  considered  adventitious  or  acci- 

'  The  "Institutes  of  Narada"  have  been  translated  into  English  by 
Dr.  Julius  Jolly.     London:   Triibuer  &  Co.,  1871. 


lis  LAW   AND   THE   STATE  [Part  I. 

dental.  But  Manu,  which  Sir  \Yiliiam  Jones  made  famous  in 
Europe,  neither  falls  wholly  under  the  one  description  nor  wholly 
under  the  other.  And  so  long  as  it  stood  by  itself  there  was  the 
greatest  difficulty  in  determining  its  place  in  the  general  history  of 
law.  .  .  .  The  whole  of  the  literature  to  which  it  belongs  sprang, 
it  would  now  appear,  from  a  double  origin  ;  in  part  from  some  bod}' 
of  usage,  not  now  easy  to  determine  (though  the  recent  investiga- 
tion of  local  bodies  of  Indian  custom  has  thrown  some  light  upon 
it),  but  chiefly  from  the  Hindu  scriptural  literature.  The  last 
exercised  by  far  the  most  important  influence.  Its  creators,  far 
back  in  antiquity,  did  not  start  with  any  idea  of  making  or  stating 
law.  Beginning  with  religious  hymnology,  devotional  exercises, 
religious  ritual,  and  theological  speculation,  some  of  their  schools 
were  brought  to  Conduct,  and  to  stating  in  detail  what  a  devout 
man  should  do,  what  would  happen  to  him  if  he  did  it  not,  and  by 
what  acts,  if  he  lapsed,  he  could  restore  himself  to  uprightness. 
Gradually  there  arose  in  these  schools  the  conviction  that,  for  the 
purpose  of  regulating  Conduct  by  uniform  rules,  it  was  a  simpler 
course  to  act  upon  the  rulers  of  men  than  on  men  themselves,  and 
thus  the  King  was  called  in  to  help  the  Brahman  and  to  be  conse- 
crated by  him.  The  beginning  of  this  alliance  with  the  King  was 
the  beginning  of  true  civil  law. 

Nothing  which  thus  happened  seems  to  me  to  be  very  unlike 
what  would  have  happened  in  the  legal  history  of  Western  Europe, 
if  the  Canonists  had  gained  a  complete  ascendency  over  Comrnon 
Lawyers  and  Civilians.  The  system  \Mliich  they  would  have 
established  might  be  expected  to  gi\c  great  importance  to  the 
purgation  of  crime  by  penances.  This  in  fact  occurred  ;  the  pref- 
erence of  the  ecclesiastical  system  with  its  penances  over  the 
secular  system  with  its  cruel  punishments,  had  much  to  do,  as  may 
be  seen  from  the  legendary  stories,  with  the  popularity  of  St. 
Thomas  (Becket^yC^Then.  it  would  be  probable  that,  in  the  case 
of  graver  sin,  the  ecclesiastical  lawyer  would  invoke  the  aid  of  the 
secular  ruler  to  secure  the  proper  expiation^and  this  again  oc- 
curred in  the  form  of  entrusting  the  severer  punishments  to  the 
secular  arm.  Finally,  if  the  sole  advisers  and  instruments  of  the 
European  King  in  the  administration  of  civil  and  criminal  justice 
had  been  ecclesiastics,  they  would  have  been  driven  in  the  long  run 
to  construct  a  system  of  civil  and  criminal  law  with  proper  sanc- 
tions enforced  by  the  Courts.  But  the  system  would  have  been 
deeply  tinged  in  all  its  parts  with  ecclesiastical  ideas,  and  though  it 
would  possibly  have  borrowed  some  or  many  of  its  rules  from  older 


Chap.  V,  §  2.]  RELIGION   AND    LAW  119 

usage,  it  would  have  been  very  hard  to  detect  their  sources  and 
their  precise  original  form. 


I  said  that  this  ancient  literature  threw  less  light  on  the  begin- 
ning of  lave  than  on  the  beginning  of  lawyers.  But  it  is  of  course  to 
be  understood  that  the  men  who  conceived  and  framed  it  were 
much  more  than  lawyers.  All  the  world  knows  that  they  were 
also  in  some  sense  priests  ;  but  they  were  much  more  than  priests.  )\ 
What  we  have  to  bring  home  to  ourselves  is  the  existence  in  ancient 
Indian  society  of  a  sole  instructed  class,  of  a  class  which  had  an 
absolute  monopoly  of  all  learning.  "^^^  included  the  only  lawyers, 
the  only  priests,  the  only  professors,  the  sole  authorities  on  taste, 
morality,  and  feeling,  the  sole  depositaries  of  whatever  stood  in  the 
place  of  a  science.  These  books  are  one  long  assertion  that  the 
Brahmans  hold  the  keys  of  Hell  and  Death,  but  they  also  show 
that  the  Brahmans  aimed  at  commanding  a  great  deal  more  than 
the  forces  of  the  intellect,  and  that  all  their  efforts  came  to  be 
directed  towards  bringing  under  their  influence  the  mighty  of  the 
earth  of  another  sort,  the  conquering  soldier  and  the  hereditary 
king.  They  were  to  become  partners  with  princes  m  their  au- 
thority, their  advisers  and  assessors.     'A  jyiigand  a  BraJiman 

deeply  versed  in  the^Vedas,  these  two  uphold  the  moral  order  of 
the'^world ; '  thus  it  is  written  in  one  of  the  oldest  of  the  books. 
Doubtless,  the  alliance  between  Brahman  and  King  was  often 
sealed,  and  produced  great  effects ;  for,  amid^the  "obscurities  of 
early  Indian  history,  the  fact  does  seem  to  emerge  that,  although 
religions  doubtless  at  first  extended  themselves  by  conversion, 
they  were  established  over  wide  areas  and  again  overthrown  much 
less  by  propagandism  than  by  the  civil  power.  On  the  whole,  the 
impression  left  on  the  mind  by  the  study  of  these  books  is,  that  a 
more  awful  tyranny  never  existed  than  this  which  proceeded  from 
the  union  of  physical,  intellectual,  and  spiritual  ascendency.  At 
the  same  time  it  would  be  altogether  a  mistake  to  regard  the  class 
whose  ideas  are  reflected  in  the  literature  as  a  self-indulgent  ecclesi- 
astical aristocracy.  It  is  not  easy,  I  must  admit,  to  describe 
adequately  the  intensity  of  the  professional  pride  which  shows 
itself  in  all  parts  of  their  writings.  Everybody  is  to  minister  to 
them ;  everybody  is  to  give  way  to  them ;  the  respectful  saluta- 
tions with  which  they  are  to  be  addressed  are  set  forth  with  the 
utmost  minuteness.  They  are  to  be  free  of  the  criminal  law  which 
they    themselves    prescribe.     'A    Brahman,'    writes     Gautama, 


120  LAW   AND   THE   STATE  [Part  I. 

'must  not  be  subjected  to  corporal  punishment,  he  must  not  be 
imprisoned,  he  must  not  be  fined,  he  must  not  be  exiled,  he  must 
not  be  reviled  or  excluded  (from  society).'  Their  arrogance 
perhaps  reaches  the  highest  point  in  a  passage  of  the  law-book  of 
Vishnu,  where  it  is  written  that '  the  Gods  are  invisible  deities ;  the 
Bralimans  are  visible  deities.  The  Brahmans  sustain  the  world. 
It  is  by  favour  of  the  Brahmans  thatThe  Gods  reside  in  Heaven.' 
Yet  the  life  which  they  chalk  out  for  themselves  is  certainly  not  a 
luxurious  and  scarcely  a  happy  life.  It  is  a  life  passed  from  first 
to  last  under  the  shadow  of  terrible  possibilities.  The  Brahman  in 
youth  is  to  beg  for  his  teacher ;  in  maturity,  as  a  married  house- 
holder, he  is  hedged  round  with  countless  duties,  of  which  the 
involuntary  breach  may  consign  him  in  another  world  to  millions 
of  years  of  degradation  or  pain ;  in  old  age,  he  is  to  become  an 
ascetic  or  a  hermit.  It  is  possibly  to  this  combination  of  self- 
assertion  with  self-denial  and  self-abasement  that  the  wonderfully 
stubborn  vitality  of  the  main  Brahmanical  ideas  may  be  attributed. 
As  I  have  shown,  the  sacerdotal  legal  system,  as  a  system,  owes 
probably  much  of  its  present  authority  to  its  adoption  by  the 
Anglo-Indian  Courts  of  Justice  as  the  common  law  of  India ;  but 
some  of  the  points  of  belief  which  underlie  it,  as  they  do  the  whole 
Brahmanical  literature,  make  the  most  durable  part  of  the  mental 
stock  of  every  Hindu.   .   .   . 

Section  3 

TABOO   AS   A   PRIMITIVE    SUBSTITUTE    FOR   LAW  ^ 

The  law  issues  commands  and  prohibitions,  the  essence  of  which 
is  not  that  the  rights  of  the  individual  shall  be  preserved,  but  that 
the  original  interests  of  culture  in  general  shall  be  promoted>/ 
Under  this  head  belong  the  many  regulations  in  respect  to  sanita- 
tion, to  the  promotion  of  rnorality  in  general,  to  the  preservation  of 
a  certain  state  of  the  earth's  surface  (the  supervision  of  rivers,  con- 
servation of  forests,  etc.).  Here,  too,  belong  the  manifold  statutes 
that  refer  to  education,  social  and  economic  conditions,  etc.  This 
is  the  field  of  cultural  advancement  through  police  and  penal 
regulations. 

In  connection  with  this  stands  the  law  of  taboo. 

Taboo  in  general  means  forbidden,  and  refers  to  everything 

1  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrechfs  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 


Chap.  V,  §  3.]  RELIGION   AND   LAW  121 

that,  for  reasons  based  on  mystical  and  religious  grounds,  is  for- 
bidden to  the  individual,  the  whole  or  a  part  of  the  people\r^hus 
the  conception  grows  out  of  primitive  mysticism,  but  it  has  a 
strongly  formative  effect,  for  a  great  deal  of  what  is  necessary  to 
human  progress  is  accomplished  by  means  of  such  prohibitions. 
We  need  only  recall  the  great  number  of  sanitary  measures  that 
could  not  have  arisen  except  in  this  way.  Of  course,  originally, 
the  taboo  was  enveloped  in  a  mass  of  so-called  superstitions,  that 
is,  in  a  mass  of  ideas  which,  in  one  direction  or  another,  gave  ex- 
pression to  a  principle  of  faithr^ily  to  die  out  later  because  they 
were  merely  of  temporar}^  significance,  and  disappeared  in  the 
light  of  more  advanced  knowledge. 

In  this  way  the  custom  of  taboo  could,  to  a  great  extent,  take 
the  place  of  our  police  regulations ;  for.  as  soon  as  priesthood  and 
chieftainry  become  more  powerful^not  only  thosa  things  are 
tabooed  that  have  hitherto  been  sacred^ut  the  priests  and  chiefs 
have  the  right  of  putting  others  under  tabo^<^  If  they  do  not 
exercise  this  right  arbitrarily,  but  on  rational  grounds,  the  taboo 
becomes  a  beneficial  means  of  removing  the  absurdities  and 
indecencies  of  the  peoplpfknd  investing  life  with  a  certain  dig- 
nity and  sublimity. 


I 


Chapter    VI 
EVOLUTION   OF   CRIMINAL  LAW 

Section  1 

PRIMITIVE    CRIMINAL    LAW  i 

The  earliest  view  which  we  obtain  of  poHtical  society  shows  us 
in  each  case  the  same  system  prevaihng  for  the  redress  of  wrongs 
and  punishment  of  offences,  namely,  a  system  of  private  revenge 
and  personal  redress  of  injuries.  Each  person  avenged,  in  what- 
ever manner  he  thought  right,  a  wrong  done  him  by  another,  and 
the  customs  of  the  tribe  sanctioned  his  doing  so  with  impunity. 
The  idea  of  retaliation  is  one  deeply  rooted  in  man's  nature.  A 
savage  or  a  child  naturally  revenges  an  injury  by  inflicting  a  similar 
one  on  the  aggressor.  Retribution  in  kind  is  viewed,  even  in 
civilised  societies,  with  satisfaction.  An  eye  for  an  eye,  a  tooth 
for  a  tooth ;  whoso  sheddeth  man's  blood,  by  man  shall  his  blooji 
be  shed  —  such  is  the  rule  in  all  early  societies.  As  Mr.  Mo^Te, 
in  speaking  of  the -Roman  Law,  well  says:  "A  system  of  self- 
redress,  in  the  form  of  private  vengeance,  preceded  everywhere 
the  establishment  of  a  regul&r  judicature ;  the  injured  person, 
with  his  kinsmen  or  dependents,  made  a  foray  against  the  wrong- 
doer, and  swept  away  his  cattle,  and  with  them  perhaps  his  wife 
and  children,  or  he  threatened  him  with  supernatural  penalties 
by  'fasting'  upon  him,  as  in  the  East  even  at  the  present  day; 
or,  finally,  he  reduced  his  adversary  to  servitude,  or  took  his  life."  - 
There  are  only  slight  traces  of  this  system  of  self-redress  in  the 
Roman  Law  of  the  time  of  Gains  and  Justinian.  Still  there  are 
sufficient  to  prove,  conclusively,  that  the  early  history  of  Law  was 
the  same  in  Rome  as  elsewhere.     When  we  apply  ourselves  to 

^  [By  Richard  R.  Cherry,  Barrister-at-Law ;  Reid  Professor  of  Consti- 
tutional and  Criminal  Law  fin  the  University  of  Dublin.  Reprinted  from 
"Lectures,  Growth  of  Criminal  Law  in  Ancient  Communities,"  Macmil- 
lan  &  Co.,  London,  1890.]  /  N 

2  Justinian,  "Insts.,"  ed.  Moyle,  vol.  i,  p.  614.  \ 

(  122  \ 


J 


Chap.  VI,  §  1.]  EVOLUTION   OF   CRIMINAL   LAW  123 

other  systems  of  law  which,  from  various  causes,  did  not  develop  in 
the  same  manner  as  the  Roman  Law  did  —  such,  for  instance,  as  the 
Brehon  Laws  of  Ireland,  and  the  legal  systems  of  Semitic  nations 
—  we  find  the  system  of  private  retaliation  in  full  vigour,  even 
in  the  most  highly  developed  stage  to  which  the  law  ever  attained. 
There  can  be  no  doubt,  also,  that  the  primitive  history  of  English 
Criminal  Law  was  in  this  respect  exactly  the  same.  "The  fact," 
says  Mr.  Justice  Stephen,  "that  private  vengeance  of  the  person 
wronged  by  a  crime  was  the  principal  source  to  which  men  trusted 
for  the  administration  of  criminal  justice  in  early  times,  is  one  of 
the  most  characteristic  circumstances  connected  with  English 
Criminal  Law,  and  has  had  much  to  do  with  the  development  of 
what  may,  perhaps,  be  regarded  as  its  principal  distinctive  peculiar- 
ity, namely,  the  degree  to  which  a  criminal  trial  resembles  a  private 
litigation"  ("Hist,  of  Criminal  Law,"  i.  245).  The  development 
of  both  the  English  and  Roman  systems  has,  in  a  great  measure, 
obliterated  the  traces  of  this  system  of  primitive  retaliation ;  and 
it  is  difficult  to  trace  in  them  the  various  steps  of  the  progress  to 
a  mature  system  of  law.  It  is  here  that  we  invoke  the  aid  of  the 
other  systems  of  law  which  I  have  mentioned.  The  Brehon  Laws, 
arrested  in  their  growth,  at  an  early  stage  of  legal  development, 
by  the  unfortunate  history  of  Ireland,  throw  a  flood  of  light  upon 
the  early  history  of  Penal  Law,  and  supply  us  with  the  missing 
link  of  legal  history.  They  exhibit  to  us,  flourishing  in  full  vigour, 
institutions  and  methods  of  procedure,  of  which  only  very  slight 
traces  remain  in  the  Roman  Law,  and  the  very  remembrance  of 
which  has  been  almost  entirely  lost  in  our  own  more  perfect  system 
of  Criminal  Law. 

The  primitive  method  for  the  redress  of  wrongs  was,  as  I  have 
said,  simple  retaliation  upon  the  person  of  the  wrongdoer.  At 
this  stage  of  human  progress.  Law,  in  any  sense  in  which  we  use 
the  term,  cannot  be  said  to  have  existed.  It  would  be  absurd 
to  call  savage  retaliation  Law ;  still  this  system  of  retaliation  is  the 
germ  from  which  Penal  Law  has  gradually  de^■eloped  itself ;  and 
we  can,  by  comparing  the  laws  of  different  nations  at  different 
periods  of  their  development,  actually  trace  the  stages  by  which 
the  practice  of  retaliation  became  transformed  into  a  regular  sys- 
tem of  Criminal  Law.  The  first  stage  in  this  progress  was  the 
growth  of  a  custom  for  the  injured  person  to  accept  some  pecuniary 
satisfaction  in  lieu  of  his  right  of  vengeance.  The  wrongdoer 
might  thus  buy  off  the  revenge  which  he  dreaded,  if  he  chose  to  do 
so.     This  was,  at  first,  a  purely  voluntary  matter  on  both  sides. 


124  LA.W   AND   THE    STATE  [Part  I. 

There  was  no  compulsion  whatsoever.  It  lay  entirely  in  the 
discretion  of  the  injured  person  whether  he  would  accept  pecuniary 
satisfaction  or  wreak  his  vengeance  on  the  wrongdoer.  And  the 
latter,  if  he  were  strong  enough,  could  safely  defy  his  enemy,  and 
refuse  to  give  any  satisfaction.  It  was  altogether  a  matter  of 
private  bargaining ;  the  injured  man,  according  to  his  power,  and 
according  to  the  fierceness  of  his  anger,  exacting  whatever  sum 
he  could  from  the  wrongdoer.  Gradually,  liowever,  a  regular 
scale  of  payment  was  established  —  at  first,  for  slight  injuries, 
and  then,  afterwards,  for  more  serious  oflFences.  Custom  has 
enormous  force  among  uncivilized  nations.  Men,  naturally,  and 
without  any  constraint,  were  satisfied  to  accept  the  same  compen- 
sation as  others  in  similar  positions  had  been  content  with.  Still 
there  was  no  compulsion  —  no  constraint  whatsoever  —  and  no 
intervention  of  any  judicial  authority. 

It  must  not  be  forgotten  tlia^  the  right  of  personal  revenge 


was  also  m  many  cases  a  duty.  Aman  was  bound  by  all  the  force 
of  religion  and  custom  to  averige  the  death  of  his  kinsman.  This 
duty  was  by  universal  practice  imposed  upon  the  nearest  male 
relative  —  the  avenger  of  blood,  as  he  is  called  in  the  Scripture 
accounts.  Among  most  nations,  murder,  like  any  other  oflFence, 
could  be  compounded  for  between  the  wrongdoer  and  the  nearest 
relative  of  the  slain.  We  never  hear  of  the  death  fine  in  historical 
times  in  Greece,  but  in  Homer  it  is  referred  to  more  than  once. 
Thus,  in  the  9th  Book  of  the  Iliad,  Ajax,  in  reproaching  Achilles 
for  not  accepting  the  oflFer  of  reparation  made  to  him  by  Agamem- 
non, reminds  him  that  even  a  brother's  death  may  be  appeased 
by  a  pecuniary  fine,  and  that  the  murderer,  having  paid  the  fine 
may  remain  at  home  among  his  own  people  free.  One  of  the  scenes 
said  to  have  been  depicted  on  the  shield  of  Achilles  is  a  dispute 
about  a  death  fine.  Among  the  ancient  Germans  the  custom 
prevailed  universally.  Tacitus  tells  us  that  atonement  was 
made  for  homicide  by  a  certain  number  of  cattle,  and  that  by  that 
means  the  whole  family  was  appeased.  By  the  Lex  Salica  the 
fine  was  paid  in  money,  and  varied  according  to  the  rank,  sex, 
and  age  of  the  murdered  person.^  The  early  English  laws  were 
based  on  the  same  principle :  the  fine  for  homicide  is  constantly 
referred  to  in  the  laws  of  Edgar  and  Athelstan.  In  Sweden  the 
death  fine  was  also  recognized  by  the  name  kinbote,  as  a  compen- 
sation for  homicide.     In  the  Roman  Law  there  is  no  trace  of  it, 

'  See  "Lex  Salica,"  edited  by  Hessels  and  Kern.     Titles  14,  24,  35, 
41-45. 


Chap.  VI,  §  1.]  EVOLUTION   OF   CRIMINAL    LAW  125 

SO  far  as  I  am  aware ;  but  the  provision  of  the  Twelve  Tables  re- 
garding homicide  has  not  been  preserved  to  us ;  and  it  is  only 
from  an  incidental  reference,  many  centuries  later,  that  we  learn 
that  death  was  the  penalty  imposed  for  the  crime.  It  is  possible 
that,  as  in  the  case  of  lesser  injuries,  primitive  Roman  Law  al- 
lowed a  murderer  to  compound  for  his  offence  by  a  money  pay- 
ment; but  it  is  more  probable,  I  think,  that  the  law  regarded 
the  life  of  a  Roman  citizen  as  too  sacred  to  be  atoned  for  by  money 
payment.  Among  Semitic  nations  the  death  fine  was  very  gen- 
eral, and  it  continued  to  prevail  in  the  Turkish  Empire  down  to 
our  own  day ;  but  the  acceptance  of  a  death  penalty  was  distinctly 
forbidden  to  the  Jews  by  the  Mosaic  legislation.  The  life  of  a 
man  was  considered  too  sacred  to  be  atoned  for  by  money. ^  Re- 
ligious influence  had  much  to  do  everywhere,  as  we  shall  see,  with 
the  development  of  Criminal  Law. 

The  death  fine  was,  of  course,  a  most  important  matter  in  cases 
where  it  was  permitted  to  be  paid  and  received,  and  it  is  in  refer- 
ence to  it  that  a  dispute  would  naturally  arise  :  firstly,  because  its 
amount  would  necessarily  be  larger  than  that  for  lesser  injuries ; 
and,  secondly,  because  the  acceptance  of  too  small  a  fine  would 
naturally  be  looked  upon  as  an  evasion  of  his  duty  by  the  avenger 
of  blood.  The  latter  might  accept  a  fine,  but  he  could  not,  with- 
out disgrace,  accept  any  small  compensation  for  the  death  of  his 
kinsman. 

The  first  germ  of  any  judicial  proceeding  is  to  be  found  in  the 
settlement  of  the  amount  of  these  fines  by  the  tribal  assembly, 
which  was  held  periodically  among  most  primitive  nations-  Each 
party  would  naturally  appeal  to  it,  and  probably  in  early  times 
its  principal  work  was  the  settlement  of  such  disputes-  At  first 
the  settlement  was  only  suggested,  neither  party  being  bound 
by  the  decision  ;  and  it  was  not,  apparently,  for  a  very  long  period 
that  any  attempt  was  made  to  enforce  decrees  as  to  the  amount 
of  the  fines.  Where  both  parties  were  willing  to  refer  the  matter 
to  the  assembly,  the  decision  of  the  latter  was  of  course  binding, 
and  gradually  it  came  to  be  usual  and  customary  to  do  so. 

We  have,  in  English  Law,  very  little  trace  of  such  a  s,vstem 
as  that  which  I  have  endeavoured  to  describe,  but  the  Brehon  Laws 
give  us  an  exact  picture  of  this  state  of  society ;  and  there  can  be 
little  doubt  that  it  preceded,  ever^^vhere,  the  establishment  of  a 
regular  judicial  system. 

In  fixing  the  amount  of  the  fine  to  be  paid,  the  Tribal  Assembly 
^  See  Numbers,  xxxv.  31. 


12G  LAW   AND   THE   STATE  [Part  I. 

would  naturally  pay  attention  to  the  likelihood  of  the  injured 
person  being  satisfied  with  its  decision.  Thus  the  feelings  of  the 
aggrieved  party,  rather  than  the  moral  guilt  of  the  offender,  or 
even  the  amount  of  damage  inflicted,  was  the  primary  matter 
which  regulated  the  amount  of  the  fine.  At  a  later  period,  when 
law  was  fully  developed,  and  the  decisions  of  courts  of  justice 
regularly  enforced,  traces  of  this  system  remained  in  the  rules 
regarding  the  penalty  for  different  offences.  The  curious  rule  by 
which,  according  to  Roman  Law,  a  theft  detected  in  the  act  was 
punished  by  a  fine  of  twice  the  amount  of  that  inflicted  for  a 
theft  not  so  detected,  is  undoubtedly  to  be  traced  to  this  source. 
"The  reason,"  says  Mr.  Poste,  " why  furtum  manifestum  was  sub- 
jected to  a  heavier  penalty  than  furhnn  Jiec  manijestmn,  was  not 
because  the  barbarous  legislator  supposed  that  detection  in  the 
act  was  an  aggravation  of  the  offence,  but  because  he  wished,  by 
the  amplitude  of  the  legal  remedy  offered,  to  induce  the  aggrieved 
party  not  to  take  the  law  into  his  own  hands  and  inflict  summary 
vengeance  on  the  offender."  ^ 

The  Roman  Law  only  exhibits,  incidentally,  as  it  were,  traces 
of  the  existence  of  such  customs ;  but  the  Brehon  Laws  exhibit 
the  system  in  full  operation.  The  "  Book  of  Aicill "  mentions  with 
great  detail  the  various  circumstances  which  are  to  be  taken  into 
account  in  fixing  the  amount  of  fines ;  and  instances  are  recorded 
where  injured  persons  refused,  for  various  reasons,  to  accept  the 
amount  fixed. 

How  then  did  this  purely  voluntary  system  become  transformed 
into  a  regularly  enforced  payment  of  the  fines  was  a  matter  of 
gradual  dcA'elopment.  The  Brehon  Law  tracts,  for  instance,  con- 
tain no  provision  whatsoever  for  the  enforcement  of  the  fines,  so 
that  we  are  much  puzzled  to  know  what  obligation  there  was  on 
any  one  to  pay.  We  .may  conjecture  that  when  first  tribal  as- 
sembhes  or  kings  began  to  decide  disputes  authoritatively,  they 
gave  (if  the  wrongdoer  were  present)  such  assistance  as  was  neces- 
sary to  the  complainant  in  exacting  the  punishment  imposed.  If 
the  wrongdoer  did  not  attend,  there  was,  so  far  as  we  can  learn, 
no  means  of  compelling  him  to  do  so ;  but  the  principle  of  retalia- 
tion was  again  invoked  here.  He  who  refused  to  pay  the  fine  was 
deprived  of  its  benefits.  If  any  man  refused  to  pay  the  fine  im- 
posed upon  him  by  law  for  any  offence,  he  was  declared  henceforth 
incapable  of  recovering  fines  for  offences  against  himself.  In 
other  words,  he  was  outlawed.  There  can  be  little  doubt  that 
^  Paste's  "Gaius,"  p.  460. 


Chap.  VI,  §  1.]  EVOLUTION    OF   CRIMINAL    LAW  ^^ 

outlawry  was  the  first  punishment  imposed  by  socitv^,  ^ 
more  archaic  a  body  of  law  is  the  more  minute  are  its  prow^ 
regarding  outlawry.  Such  is  the  conclusion  at  which  Sir  J:x. 
Maine  arrives:  —  "The  earliest  penalty  for  disobedience  to  the 
court  was  probably  outlawry.  The  man  who  would  not  abide  by 
its  sentence  went  out  of  the  law.  If  he  were  killed,  his  kinsmen 
were  forbidden,  or  were  deterred  by  all  the  force  of  primitive  opin- 
ion, from  taking  that  vengeance  which  otherwise  would  have 
been  their  duty  and  their  right."  ^  The  introduction  of  the  sys- 
tem of  outlawry  is  extremely  important  in  that  it  marks  the  real 
origin  of  Criminal  Law.  In  ancient  law  there  is  no  such  thing 
as  a  crime.  The  word  "  crimen  "  .  .  .  is  of  comparatively  modern 
origin  in  Roman  Law,  and  necessarily  implies  a  judicial  proceeding 
of  some  kind. 

Criminal  Law,  as  distinct  from  Penal  Law,  involves  some  ele- 
ment of  public  condemnation  —  such  was  a  sentence  of  outlawry. 
The  right  of  vengeance,  or  the  penalty  paid  and  accepted  in  lieu 
of  it,  is  a  matter  more  of  private  than  of  public  law.  The  term 
"poena"  does  not,  like  "crimen,"  involve  anything  of  a  public 
nature.  "There  can  be  little  doubt  that  the  term  'poena'  origi- 
nally meant  not  so  much  penalty  as  composition  for  injury ;  the 
earliest  'poense'  were  sums  in  consideration  of  which  the  injured 
person  consented  to  forego  his  customary  right  of  self-redress, 
and  the  penal  sums  recovered  by  the  plaintiff  in  a  Roman  action 
on  delict  attest  the  nature  of  the  practice,  though  in  them  the 
'penalty'  is  usually  fixed  by  the  State,  and  not  bj^  the  parties."  ^ 

The  prototype  of  a  modern  criminal  trial  appears  in  the  solemn 
proclamation  at  the  tribe  meeting,  after  full  inquiry,  of  the  sentence 
of  outlawry.  In  Iceland  the  sentence  was  pronounced  at  the 
Althing  by  the  Law  man.  In  the  Saga  of  Gisli  the  outlav\-,^  we 
have  an  account  of  the  manner  in  which  sentence  of  outlawry  was 
passed  in  that  country.  Gisli  in  a  quarrel  had  slain  his  opponent. 
He  flies,  and  is  pursued  by  Bork  the  Stout,  brother  of  the  slain 
man.  "The  next  thing  that  happens  is  that  Gisli  sends  word  to 
his  brothers-in-law,  Helgi,  and  Sigurd,  and  Vestgen,  to  go  to  the 
Thing  (i.e.  local  assembly  held  periodically)  and  offer  an  atone- 
ment for  him  that  he  might  not  be  outlawed.  So  they  set  oft'  for 
the  Thing,  the  sons  of  Bjartmar,  and  could  bring  nothing  to  pass 
about  the  atonement ;   and  men  go  so  far  as  to  say  that  they  be- 

'  See  his  chapter  on  "The  King  in  his  relation  to  early  ci\'il  justice," 
in  ^'Early  Law  and  Custom,"  pp.  170-174. 
*  Moijle,  "Insts.  of  .Justinian,"  vol.  i,  p.  616. 
3  "The  Story  of  Gisli  the  Outlaw."     Ed.  by  Sir  G.  Dasenl. 


128  LAW   AND   THE    STATE  [Part  I. 

haved  ver^y  ill,  so  that  they  almost  burst  out  Into  tears  ere  the  suit 
was  o'ver.  They  were  then  very  young  ;  and  Bork  the  Stout  was 
snj  very  wroth  they  could  do  nothing  with  him."  In  England  it 
was,  under  the  old  law,  necessary  that  a  man  should  be  solemnly 
called  at  four  county  courts  ^  before  the  sentence  of  outlawry  could 
be  pronounced  against  him.  In  theory  outlawry  still  exists  in 
our  law,  though  it  has  long  since  become  obsolete  in  practice. 

Such  is  a  slight  sketch  of  the  manner  in  which  Criminal  or 
Penal  Law  appears  to  have  originated  in  all  legal  systems.  When 
we  pass  this  initial  stage  we  find  that  Laws  developed  themselves 
differently  in  different  countries,  according  to  differing  circum- 
stances of  government,  occupation,  and  temperament  of  the 
people.  Different  acts  became  crimes  under  different  systems, 
but  the  general  principle  which  underlay  all  Avas  the  principle  of 
revenge.  Those  acts  have  everywhere  come  to  be  regarded  as 
crimes  which  in  early  times  tended  to  provoke  vengeance  or  retali- 
ation. The  judicial  authority,  either  the  king  or  tribal  assembly, 
at  first  regulated  the  manner  in  which  this  vengeance  was  to  be 
enforced,  and  the  terms  upon  which  it  might  be  commuted.  Indi- 
viduals were  constrained  to  obey  by  sentences  of  outlawry. 
Gradually,  then,  partly  in  order  to  suppress  disorder,  and  partly  in 
consequence  of  the  disappearance,  for  various  reasons,  of  the  sys- 
tem of  pecuniary  fines,  a  regular  system  of  Criminal  Law  came  into 
existence;  the  same  acts  being  punished  as  offences  as  were  for- 
merly liable  to  fine  or  personal  revenge.  We  thus  see  how  completely 
different  the  early  development  of  Criminal  Law,  as  a  matter  of 
fact,  was,  from  what,  according  to  the  principles  of  analytical 
jurisprudence,  we  might  naturally  suppose  it  to  have  been. 

Section  2 

DEVELOPMENT   OP  JUSTICE  ^ 

L  To  the  civilized  man  it  seems  the  merest  truism  to  say  that 
the  business  of  Government  is  to  make  and  execute  laws,  to  see 
that  crime  is  suppressed,  and  that  its  subjects  are  maintained  in 
possession  of  their  just  rights.  Not  only  so,  but  the  broad  lines 
upon  which  justice  is  administered  are  to  him  so  familiar  and 

1  The  County  Courts  were,  in  all  probability,  a  survival,  among  the 
Anglo-Saxons,  of  the  periodical  tribal  assembly  of  the  Teutonic  nations. 

-  [By  L.  T.  HoBHOUSE.  Reprinted  from  "Morals  in  Evolution,"  by 
permission  of  Henry  Holt  and  Company,  New  York.  Abbreviated  and 
omitted  book-titles  with  the  detail  of  editions  are  supplied  by  the  author's 
reference  list  on  p.  xiii  seq.,  Vol.  I  of  the  original  work.] 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMIXAL    L.\W  129 

seem  so  clearly  marked  out  by  reason  and  common  sense  that  if 
he  were  to  think  of  their  origin  at  all  he  would  naturally  imagine 
that  here,  if  anywhere,  we  had  to  do  w4th  simple  and  elementary 
moral  ideas,  implanted  in  men  by  nature,  and  needing  no  training 
nor  experience  to  perfect  them.  Thus,  what  could  be  more 
obvious  to  begin  with  than  the  distinction  of  civil  and  criminal 
justice  ?  A  may  trespass  upon  the  rights  of  B,  but  he  may  do  so 
without  fraud,  violence,  or  any  criminal  intent.  In  such  cases 
the  loss  suffered  by  B  must  be  made  good,  but  no  further  punish- 
ment should  fall  upon  A,  That  is,  there  is  ground  for  a  civil 
action.  Or,  on  the  other  hand,  in  injuring  B,  A  may  have  com- 
mitted an  offence  against  the  social  order.  In  that  case  he  must 
be  punished  as  a  criminal,  and  is  not  to  escape  merely  by  making 
good  the  loss  inflicted  on  B.  He  has  offended  society,  and  society 
insists  on  punishing  him.  But,  further,  if  A  is  a  wrong-doer, 
it  must  be  proved  that  he  is  a  responsible  agent.  He  must  have 
done  wrong  with  intention,  and,  if  so,  he  alone  ought  to  suffer. 
Socially,  no  doubt,  his  fall  must  affect  his  innocent  wife  and 
children,  but  this  is  a  regrettable  result,  not  a  consequence  which 
the  law  goes  about  to  inflict.  Lastly,  whether  in  a  civil  or  criminal 
case,  the  function  of  the  law  is  to  set  up  an  impartial  authority, 
before  whom  the  question  is  argued.  Both  sides  are  heard. 
Evidence  is  cited,  and  witnesses  called,  whose  testimony  the 
court  is  free  to  sift  and  weigh.  Formalities  and  rules  have  to  be 
observed,  but  apart,  perhaps,  from  some  which  are  archaic,  they 
are  devised  mainly  as  safeguards  against  wrongful  decisions,  and 
the  real  business  of  the  inquiry  is  to  get  at  truth  as  to  the 
material  facts.  In  the  end,  the  decision  being  given,  the  court 
can  freely  use  the  executive  power  of  Government  to  enforce  it. 

Elementary  as  all  this  sounds,  it  is,  historically  speaking,  the 
result  of  a  long  evolution.  The  distinction  between  civil  and 
criminal  law,  the  principle  of  strictly  indi\'idual  responsibility, 
the  distinction  between  the  intentional  and  the  unintentional, 
the  conception  of  the  court  as  an  impartial  authority  to  try  the 
merits  of  the  case,  the  exclusive  reliance  on  evidence  and  testimony, 
the  preference  of  material  to  formal  rectitude,  the  execution  of 
the  court's  decision  by  a  public  force  —  all  are  matters  very  im-  --> 
perfectly  understood  by  primitive  peoples,  and  their  definite  * 
establishment  is  the  result  of  a  slow  historical  process.  Perhaps 
no  other  department  of  comparative  ethics  gives  so  vivid  an  idea  of 
the  difficulty  which  humanity  has  found  in  est§,l]|^i^iii;^gj^ie  simple 
elements  of  a  just  social  order.       \>->*^^ 


130  LAW  AND   THE   STATE  [Part  I. 

2.  The  growth  of  law  and  justice  is  pretty  closely  connected  in 
its  several  stages  with  the  forms  of  social  organization.  In 
quite  the  lowest  races  there  is,  as  we  have  seen,  scarcely  any- 
thing that  is  strictly  to  be  called  the  administration  of  justice. 
Private  wrongs  are  revenged  by  private  individuals,  and  any  one 
whom  they  can  get  to  help  them.  The  neighbours  interfere  in 
the  least  possible  degree,  and  how  far  a  man's  family,  or  the 
wider  group  to  which  he  belongs,  will  stand  by  him,  is  a  question 
which  is  decided  in  each  particular  case  as  its  own  merits,  or  the 
inclinations  of  those  concerned,  direct.^  But  even  at  a  very  low 
stage  this  uncertain  and  fitful  action  begins  to  take  a  more  defi- 
nite shape.  We  find  something  that  corresponds  roughly  to  our 
own  administration  of  justice,  and  from  the  outset  we  find  it  in 
two  broadly  distinct  cases.     There  are  occasions  upon  which  a 

1  See  the  aecoimt  of  the  Veddahs  and  Fuegians  (original  work,  ch.  ii). 
With  these  may  be  joined  the  Andamanese,  who  live  in  small  communities 
numbering  from  twenty  to  fifty  individuals,  and  have  no  distinct  institu- 
tions for  the  maintenance  of  order  or  the  settlement  of  disputes.  Each 
group,  indeed,  has  a  chief,  but  liis  powers  are  extremely  limited,  extending 
to  little  beyond  the  right  of  calling  the  people  together  and  exercising  over 
them  what  influence  he  can.  There  is  no  form  of  covenant,  no  oath,  no 
form  of  trial,  no  ordeal.  Justice  is  left  altogether  to  the  aggrieved  party, 
who  shoots  an  arrow  at  his  enemy  or  throws  a  burning  faggot  at  him,  the 
neighbours  playing  their  part  in  the  matter  by  running  away  until  the 
quarrel  is  over,  which  at  any  rate  prevents  the  spread  of  the  mischief.  The 
law  of  vengeance  is  not  developed.  A  relative  maj'  avenge  the  death  of  a 
murdered  man,  but  it  is  not  necessary  that  anything  should  happen. 
The  neighbours  are  afraid  of  the  murderer,  and  he  finds  it  desirable  to 
absent  himself  for  a  while.  Not  uncommonly  a  man  will  show  his  resent- 
ment, not  by  punishing  the  'wrong-doer,  but  by  destrojang  all  the  property 
that  he  can  lay  hands  upon,  including  his  own.  The  chief's  property 
alone  will  be  respected.  In  other  words,  the  Andaman  Islander,  like  the 
Malay,  is  apt  to  run  amok,  and  such  men  are  not  resisted  because  they 
are  held  to  be  possessed.  Conjugal  fidelity  among  this  monogamous 
people  is  enforced  by  the  husband,  but  in  punisliing  the  guilty  party  he 
runs  the  risk  of  retaliation.  There  appears,  however,  says  Mr.  IMan,  to 
be  an  understanding  that  the  greater  the  provocation  offered  the  less  is 
the  risk  incurred  by  the  injured  person  or  his  friends,  in  avenging  the 
wrong  —  a  sentiment  which  very  aptly  characterizes  the  degree  in  which 
justice  is  recognized  as  a  public  matter  at  this  stage  of  social  development. 
There  is  no  definite  redress,  but  an  injured  man  may  hope  to  earrj^  the 
support  of  the  neighbours  with  him  in  rough  proportion  to  the  strength 
of  his  case.  Injuries  done  by  a  member  of  another  tribe  lead  to  more 
regular  feuds  and  are  avenged  if  possible  by  a  night  attack  upon  the 
neighbouring  camp,  which,  if  successful,  results  in  tlie  slaughter  of  the 
males  and  the  destruction  or  appropriation  of  the  property  of  the  van- 
quished. The  women  of  the  enemy,  it  may  be  noted,  are  not  deliberately 
Ivilled ;  at  any  rate  their  death  is  not,  as  among  some  more  advanced 
peoples,  a  matter  for  boasting ;  and  the  child  captive  would  be  treated 
kindly  with  a  view  to  its  adoption  by  the  captors'  tribe.  Cannibalism, 
the  frequent  concomitant  of  savage  warfare,  is  held  in  horror,  but  is  attrib- 
uted by  the  southern  Andamanese  to  the  inhabitants  of  the  northern 
island.  {E.  H.  Man,  "Journal  of  the  Anthropological  Institute,"  vol. 
xii.  108  seq.) 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMINAL   LAW  131 

whole  community  will  turn  upon  an  offender  and  expel  him,  or 
put  him  to  death.  Sometimes,  indeed,  this  is  merely  a  kind  of 
lynch  law  directed  against  a  man  who  makes  himself  unbearable 
or  commits  some  crime  which  touches  a  general  feeling  of  resent- 
ment into  life.  But  beyond  this  there  are  at  almost,  if  not  quite, 
the  lowest  stages  certain  actions  which  are  resented  as  involving 
the  community  as  a  whole  in  misfortune  and  danger.  These  in- 
clude, besides  actual  treason,  conduct  which  brings  upon  the  people 
the  wrath  of  God,  or  of  certain  spirits,  or  which  violates  some 
mighty  and  mysterious  taboo. ^  The  actions  most  frequently  re- 
garded in  this  light  are  certain  breaches  of  the  marriage  laws  and 
witchcraft.  The  breaches  of  the  marriage  law  which  come  in 
question  here  are  confined  to  those  transgressions  of  the  prohibi- 
tions of  intermarriage,  upon  which  primitive  races  lay  such  ex- 
traordinary stress.  A  mere  violation  of  the  marriage  tie  is  gener- 
ally in  savage  society  a  private  matter,  avenged  by  the  husband 
alone,  or  by  those  whose  duty  it  is  to  help  him ;  but  a  breach  of  the 
rules  of  exogamy,  a  marriage  within  the  totem,  for  example,  or  a 
marriage  outside  the  permissible  class,  is  regarded  as  an  offence 
endangering  the  community  herself,  and  only  to  be  wiped  out  by 
the  extinction  of  the  offender.  A  Central  Australian  tribe,  for 
instance,  which  has  no  regular  means  of  enforcing  any  law,  will 
make  up  a  war  party  to  spear  the  man  and  woman  who  have 
married  in  defiance  of  these  customs.^  Similarly  common  action 
will  often  be  taken  to  protect  the  community  from  witchcraft, 
obviously  a  terrible  offence  in  a  society  which  firmly  believes  in 
it.  Among  the  North  American  Indians  a  public  sentence  was 
often  pronounced  and  carried  out  by  the  chiefs  in  cases  of  sorcery, 
and  sometimes  also  in  cases  of  cowardice  or  breaches  of  the  marriage 
customs.^  The  punishment  of  witchcraft  is  as  widespread  as  the 
fear  of  it,  and,  prompted  as  it  is  by  the  sense  of  a  danger  to  the 
whole  community,  is  often  peculiarly  ferocious,  and  directed  to 
the  destruction  of  every  one  connected  with  the  offender.^ 

'  C/.  Steinmetz,  "Ethnologisehe  Studien  zur  ersten  Entwickelung  der 
Strafe,"  ii.   pp.  328-341. 

2  Sometimes  the  old  men  of  the  tribe  wnll  in\dte  a  neighbouring  group 
to  execute  the  criminal.  Cutting  and  burning  are  sometimes  substitutes 
for  death.  {Spencer  and  Gillen,  "Native  Tribes  of  Central  Australia," 
p.  495.) 

^  Knhler,  "Zeitschrift  fiir  vergleichende  Rechtswissenschaft."  1897, 
pp.  412-416.     For  the  punishment  of  sorcery,  see  Waitz,  iii.  p.  128. 

■•  "The  punishments  affecting  sorcerers  can  scarcely  be  called  punish- 
ments. They  are  acts  of  annihilation."  —  Post,  ii.  p.  395,  where  numer- 
ous instances  are  given  from  all  parts  of  the  world.  In  some  cases,  the 
whole  family  of  the  offender  perishes  with  him. 


132  LAW   AND   THE   STATE  [Part  I. 

The  object  of  the  community  in  exterminating  the  criminal  is 
not  so  much  to  punish  the  wicked  man  as  to  protect  itself  from  a 
danger,  or  purge  itself  from  a  curse.  Achan  takes  the  accursed 
thing,  the  thing  which  had  been  devoted  to  Jahveh.  The  taboo 
on  the  thing  devoted  is  at  once  communicated  to  Achan  himself 
as  though  it  were  a  poison  or  an  infection,  or,  to  take  another 
metaphor,  a  charge  of  electricity.  It  passes  from  the  spoil  ap- 
propriated to  the  appropriator,  and  no  resource  remains  but  to 
de\'ote  Achan  with  all  his  family  and  belongings,  everything,  in 
fact,  which  the  accursed  thing  had  infected.  The  Roman  criminal, 
if  his  offence  bore  a  religious  character,  was  "sacer"  —  separated 
from  men,  made  over  to  the  offended  deities.^  His  goods  were  set 
apart  {consecratio  honorum),  for  they  were  involved  in  his  impurity. 
He  was  banished,  so  that  none  might  come  into  contact  with  his 
accursed  person.  He  was  cut  off  from  fire  and  water,  not  primarily 
because  fire  and  water  were  necessary  to  his  life,  so  that  he  was 
sentenced  to  death  by  being  deprived  of  them,  but  rather  for  fear 
that  his  accursed  touch  should  pollute  the  sacred  elements  and 
convey  the  pollution  to  others.  That  the  criminal  suffered  in 
consequence  was  a  satisfactory  collateral  effect,  but  the  main  thing 
was  to  secure  the  fire  and  water  from  pollution.- 

Thus  far,  then,  public  punishments,  where  they  are  any  more 
than  an  explosion  of  indignant  feeling,  may  be  regarded  as  public 
action  taken  for  the  sake  of  public  safety.  The  community  is 
threatened  with  palpable  treason,  or  with  occult  magic  influence, 
or  by  the  wrath  of  the  gods.^  It  protects  itself  by  destroying  the 
traitor,  or  sacrificing,  or,  at  any  rate,  getting  rid  of,  the  witch. 
It  is  a  kind  of  public  hygiene  rather  than  a  dispensation  of  justice 
which  is  in. question. 

1  Thus  the  undutiful  son  is  "sacred"  to  the  parental  deities.  "Si 
parentem  puer  verberit,  ast  olle  plorassit,  puer  divis  parentum  saeer 
esto."  {Bruns,  "Fontes  Juris  Romani  Antiqui,"  p.  14.)  Treason  to  a 
client,  or  ploughing  up  a  neighboui''s  landmark,  would  also  render  a  man 
"saeer."  Cf.  the  curses  in  Deut.  xxvii.  At  bottom  the  idea  of  some 
North  American  Indians  is  similar,  among  whom  the  murderer  is  taboo, 
because  haunted  by  the  ghost  of  the  victim.  {Kohler,  "Z.  f.  vgl.  Rechts- 
wst.,"  1897,  p.  408.) 

^  Jhering,  "Geist  des  Romisehen  Rechts,"  i.  pp.  275-277,  etc. 

'  Among  the  German  tribes  the  worst  offenders  were  sacrificed  to  the 
gods,  unless  the  latter  showed  signs  of  grace,  in  which  case  the  offender 
became  a  slave  of  the  gods,  or  was  sold  into  slavery,  or  became  an  exile. 
The  great  offences  were :  —  breach  of  the  peace  of  the  temple,  the  army, 
or  the  meeting,  of  a  special  festival,  or  finally  of  the  house ;  grave-robbing, 
treason,  raising  an  army  in  rebeUion,  arson,  black  magic ;  anti-social 
crimes  of  peculiar  depravity,  such  as  breach  of  a  sworn  peace,  unnatural 
desire,  and  acts  of  cowardice,  such  as  desertion  from  the  army ;  concealed 
murder  and  theft,  in  opposition  to  open  murder  and  robbery.  {Schroder, 
"Lehi'buch  der  Deutschen  Reehtsgeschichte,"  pp.  74  and  76.) 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMINAL    L.\W  133 

3.  With  the  redress  of  wrongs,  the  maintenance  of  private 
rights,  and  the  punishment  of  the  bulk  of  ordinary  offences,  it  is 
different.  For  these  purposes  primitive  society  has  no  adequate 
organization.  Administration  of  justice  in  this  sense  is  in  the 
main  a  private  matter.  It  is  for  the  sufferer  to  obtain  redress 
or  to  revenge  himself,  and  in  the  lowest  stages  of  all,  the  vengeance 
is,  as  we  have  seen,  casual,  arbitrary  and  unsystematized.  But 
as  the  family  and  the  clan  acquire  definite  and  coherent  structure 
a  systematic  method  of  redress  grows  up.  The  leading  character- 
istics of  this  method  are  two  —  (1)  that  redress  is  obtained  by  re- 
taliation, and  (2)  that  owing  to  the  solidarity  of  the  family  the 
sufferer  will  find  support  in  obtaining  the  redress  that  he  seeks. 
The  individual  man,  woman  or  child  no  longer  stands  by  himself 
or  herself,  but  can  count  with  considerable  certainty  on  the  pro- 
tection of  his  relatives,  who  are  bound  to  avenge  a  wrong  done 
to  hiiri,  or  to  stand  by  him  in  exacting  vengeance  by  every  tie  of 
honour  and  religion.  In  other  words,  this  is  the  stage  of  the  blood 
feud.  "  He  that  sheddeth  man's  blood,  by  man  shall  his  blood 
be  shed,"  is  the  earliest  law  given  in  the  Old  Testament,  and  on 
this  point  the  Old  Testament  may  be  said  to  be  a  faithful  reflection 
of  the  historical  facts. 

Though  the  blood  feud  is  an  expressinn  of  vpn^ypHnrp.  this 
vengeance  is  by  no  means  wholly  without  regulations  and  rules 
of  its  own.  There  is  a  rough  justice  recognizable  in  its  working, 
though  it  is  not  the  justice  of  an  impartial  third  person  surveying 
the  facts  as  a  whole.  There  is  no  question  of  a  just  judge  render- 
ing each  man  his  due,  but  rather  of  a  united  kin  sympathizing 
with  the  resentment  of  an  injured  relation  when  expressing  itself 
in  certain  traditional  forms.  Justice  as  we  understand  it  —  the 
rendering  to  each  man  his  due  as  judged  by  an  impartial  authority 
—  is  not  distinctly  conceived  as  a  social  duty  in  primitive  ethics 
and  that  is  what,  morally  speaking,  differentiates  the  primitive 
ethical  consciousness  from  the  ethical  consciousness  at  a  higher 
stage  of  development.  Yet  primitive  ethics  works  upon  rules  in 
which  a  certain  measure  of  justice  is  embodied.  Thus  in  the  first 
place  custom  prescribes  certain  rules  of  retaliation  which  are 
recognized  as  right  and  proper  and  have  the  approval  of  the 
neighbours  and  clansmen.  The  simplest  and  earliest  of  these  rules 
is  the  famous  Lex  Talionis,  "  An  eye  for  an  eye,  and  a  tooth  for 
a  tooth,"  familiar  to  us  from  the  chapter  of  Exodus,  but  far  earlier 
than  Exodus  in  its  first  formulation.  We  find  it,  like  many  other 
primitive  rules  of  law,  in  the  recently-discovered  code  of  King 


134  LAW   AND   THE   STATE  [Part  I. 

Hammurabi/  which  is  earlier  than  the  Book  of  the  Covenant 
perhaps  by  1300  years,  and  we  find  it  at  the  present  day  among 
people  sociologically  at  an  earlier  stage  of  development  than  the 
Babylonians  of  the  third  millennium  before  Christ.  We  find  it 
applicable  to  bodily  injuries,^  to  breaches  of  the  marriage  law,^  and 
perhaps  we  may  say  in  the  rules  of  the  twofold  restitution  for 
theft  and  in  the  symbolic  form  of  mutilating  the  offending  member 
even  to  the  case  of  offences  against  property.^  In  some  cases  the 
idea  of  exact  retaliation  is  carried  out  with  the  utmost  literalness  — 
a  grotesque  literalness  sometimes,  as  when  a  man  who  has  killed 
another  by  falling  on  him  from  a  tree  is  himself  put  to  death  by 
exactly  the  same  method  —  a  relation  of  the  deceased  solemnly 
mounting  the  tree  and,  much  one  would  say  at  his  own  risk,  de- 
scending upon  the  offender.^  More  often,  of  course,  vengeance 
is  simpler.  Stripes,  mutilation  or  death  are  inflicted  without  any 
attempt  to  imitate  the  original  offence,  though  there  may  very 
well  be  a  grading  of  the  vengeance  in  proportion  to  the  original 
wrong.  The  homicide  is  slain,  the  adulterer  speared,  beaten,  or 
mutilated,  the  thief  slain,  enslaved  or  forced  to  make  restitution, 
the  defaulting  debtor  enslaved  or  flogged.^ 

4.  But  at  a  fairly  early  stage  in  the  growth  of  social  order  a 
fresh  principle  is  introduced  tending  to  mitigate  the  blood  feud 
and  so  maintain  peace  and  harmony.  For  the  special  vice  of  the 
system  of  retaliation  is  that  it  provides  no  machinery  for  bringing 
the  quarrel  to  an  end.     If  one  of  the  Bear  totem  is  killed  by  a 

1  Hammurabi,  §  195.  If  a  man  has  struck  his  father,  his  hands  one 
shall  cut  off. 

196t  If  a  man  has  caused  the  loss  of  a  gentleman's  eye,  his  eye  one  shall 
cause  to  be  lost. 

197.  If  he  has  shattered  a  gentleman's  limb,  one  shall  shatter  his 
limb. 

200.  If  a  man  has  made  the  tooth  of  a  man  that  is  his  equal  to  fall  out, 
one  shall  make  his  tooth  fall  out,  etc. 

2  See  instances  in  Post,  ii.  pp.  240,  241.  . 

5  The  adulterer  has  to  jaeld  his  own  wife  to  the  injured  husband  {loc. 
cit.,  cf.  Waitz,  iv.  361). 

**  The  thief  loses  eye  or  hand.  Similarly  the  adulterer  or  ravisher  may 
be  castrated  —  and  with  this  we  may  perhaps  compare  the  punishment  of 
the  unchaste  \vife  by  prostitution.  The  perjurer  loses  his  tongue  or  the 
" schwurfinger. "      (Post,  I.e.) 

^  In  the  Leges  Henriei,  Pollock  and  Maitland,  vol.  ii.  pp.  470,  471. 
Mutilation  is  punished  by  retaliation  among  the  Barea  and  Kunama,  the 
Whydah,  Bogos,  and  Congo  people.      {Post,  ii.  241.) 

s  E.g.  among  the  Cherokees  the  defaulting  debtor  was  tied  to  a  tree  and 
flogged.  {Waitz,  iii.  p.  131.)  In  other  tribes  disputes  as  to  money 
matters  were  regulated  by  arbitrators  chosen  by  the  conflicting  parties. 
Those  who  were  prevented  by  illness  or  any  real  obstacle  from  pa\ang 
their  debts,  were  not  compelled  to  do  so,  but  those  who  could  pay  and 
did  not  fell  into  general  contempt. 


Chap.  YI,  §  2.]  EVOLUTION    OF   CRIMINAL   LAW  135 

Hawk,  the  Hawk  must  be  killed  by  one  of  the  Bears,  but  it  by  no 
means  follows  that  this  will  end  the  matter,  for  the  Hawks 
may  now  stand  by  their  murdered  clansmen  and  take  the  life  of 
a  second  Bear  in  revenge,  and  so  the  game  goes  on,  and  we  have 
a  true  course  of  vendetta.  Accordingly  peaceable  souls  with  a 
view  to  the  welfare  of  both  families,  perhaps  with  the  broader 
view  of  happiness  and  harmony  within  the  communit}',  intervene 
with  a  suggestion  of  peace.  Let  the  injured  Bears  take  compensa- 
tion in  another  form,  let  them  take  cattle  or  other  things  to  make 
good  the  loss  of  the  pair  of  hands  which  served  them.  In  a  word, 
let  the  payment  of  damages  be  a  salve  to  vindictive  feelings.  In 
that  way  the  incident  may  come  to  an  end  and  peace  will  reign. 
When  such  a  practice  becomes  a  customary  institution  we  enter 
upon  the  stage  of  composition  foroffences,a  stage  peculiarly  charac- 
teristic of  the  settling  down  of  barbarous  tribes  into  a  peaceable 
and  relatively  civilized  state,  and  especially  of  the  growth  of  the 
power  of  a  chief  whose  influence  is  often  exerted  to  enforce  the 
expedient  of  composition  upon  a  reluctant  and  revengeful  family. 
As  the  institution  takes  shape  a  regular  tariff  is  introduced,  so 
much  for  an  injury,  so  much  for  the  loss  of  an  eye,  so  much  for  a 
life.  Often  a  distinction  between  classes  of  crime  appears.  For 
some  it  is  the  rule  that  composition  should  be  accepted.  Others 
are  recognized  as  too  grave  to  be  washed  out  except  by  blood. 
Thus  among  the  German  tribes  murder  and  rape  excited  blood- 
revenge,  while  other  injuries  were  punishable  by  fine,  and  the 
fine  is  significantly  called  "  faida,"  as  being  the  feud  commuted  for 
money. ^  The  distinction  lasted  into  the  ^Middle  Ages,  even  in  a 
period  when  the  fine  or  a  part  of  it  went  to  the  king.  Our  Leges 
Henrici  still  distinguish  emendable  offences,  in  which  sacrilege 
and  wilful  homicide  without  treachery  are  included,  from  un- 
emendable  offences  such  as  housebreaking,  arson,  open  theft, 
aggravated  homicide,  treason  against  one's  lord  and  breach  of 
the  church's  or  the  king's  peace.^     These  are  crimes  which  in  the 

1  Waitz,  "Deutsche  Verfassungfsgeschichte,"  i.  p.  437,  who,  however, 
denies  that  the  fine  was  a  merely  buying  off  of  revenge. 

"^  Post,  "Afrikanische  .Jurisprudenz,"  ii.  30,  gives  a  list  of  ten  African 
peoples  in  which  composition  is  allowed  for  all  offences.  In  three  others 
it  is  allowed  for  all  cases  e.xcept  the  gravest,  such  as  murder ;  among  the 
Kimbundas,  for  all  except  sorcery  and  treason ;  among  the  Barolong  for 
all  except  rebellion,  and  among  the  Kaffirs  for  all  except  treason,  sorcery, 
and  sometimes  murder.  In  mediaeval  England  there  was  much  local 
variation  in  the  fines.  At  Lewes  the  fine  for  bloodshed  was  7/4,  for 
adultery  S/4,  the  man  paying  the  King,  the  woman  the  Archbishop.  In 
Shropshire  the  fine  for  l)loodshed  was  40/-.  In  Worcestershire  rape  was 
not  emendable.      {Pollock  and  Mailland,  ii.  p.  457.) 


136  LAW   AND   THE   STATE  [Part  I. 

Anglo-Saxon  term  had  no  bot  —  no  bot  or  money  payment  atoned 
for  them  —  they  were  bot-less,  boot-less.  Even  when  the  bot 
was  payable  it  stood  at  first  at  the  discretion  of  the  injured  family 
to  accept  or  reject  it,  and  we  find  the  Germanic  codes  in  the  early 
Middle  Ages  setting  themselves  to  insist  on  its  acceptance  as  a 
means  of  keeping  the  peace.^  If  the  fine  is  not  forthcoming  of 
course  the  feud  holds. 

But  when  injuries  are  being  assessed,  not  only  must  there  be 
a  distinction  between  the  injuries  themselves,  but  also  between 
the  persons  injured.  There  must  be  a  distinction  of  rank,  age,  sex ; 
a  free-born  man  is  worth  more  than  a  slave,  a  grown-up  person 
than  a  child,  generally  speaking  a  man  than  a  woman,  a  chief 
or  person  of  rank  than  a  free  man.  And  so  we  have  the  system  of 
"wergilds"  familiar  to  us  in  the  early  stages  of  our  own  history,^ 
and  again  recognizable  in  the  code  of  Hammurabi.^  In  one  form 
or  another  the  system  of  composition  prevails  or  has  prcA'ailed 
almost  to  this  day  over  a  great  part  of  the  barbaric  world,  among 
the  North  American  Indians,^  in  the  Malay  Archipelago,^  in  New 
Guinea,  among  the  Indian  hill  tribes,  among  the  Calmucks  and 
Kirghis  of  the  steppes  of  Asia,  among  the  rude  tribes  of  the  Cau- 

1  Charlemagne's  capitulary  of  802  forbids  the  kin  to  increase  the  evil 
by  refusing  peace  to  the  manslayer  who  craves  it.  {Jenks,  "Law  and 
Politics,"  p.  102.)  In  England,  down  to  the  ninth  and  tenth  centuries, 
the  aggi-essor  might  elect  to  bear  the  blood  feud,  but  by  an  ordinance  of 
Alfred,  the  injured  party  might  have  the  help  of  the  ealdorman  to  enforce 
payment.      (Pollock  and  Maitland,  i.  47.) 

'2  Among  the  Germanic  peoples,  in  the  early  mediaeval  period,  the 
wergild  of  a  noble  was  generally  double  that  of  a  free  man.  A  post  in 
the  King's  ser^aee  trebled  the  wergild  of  the  official's  hereditary  rank. 
The  Liti  (Horige)  had  as  a  rule  half  the  wer  of  free  men,_  whilst  slaves 
according  to  strict  principle  had  none,  but  only  a  valuation.  In  fact, 
however,  some  barbarian  codes  assigned  them  half  the  wer  of  a  litus. 
(Schroder,  pp.  345,  346.) 

3  Hammurabi  illustrates  two  subsidiary  points.  (1)  An  offence  against 
a  man  of  higher  rank  may  be  unemendable  (i.e.  punished  by  retaliation), 
while  the  same  offence  against  a  man  of  lower  rank  is  commutable.  (2) 
The  rank  of  the  aggressor  may  influence  the  punishment  as  well  as  that 
of  the  sufferer.  Injuries  to  eye  or  limb  of  a  "gentleman"  are  punished 
by  retaUation  (sections  196,  197),  but  in  section  198,  "If  he  has  caused 
a  poor  man  to  lose  his  eye  or  shattered  a  poor  man's  limb,  he  shall  pay  one 
mina  of  silver."  Further,  by  section  199,  the  slave  has  no  ^ver  —  for  the 
same  injury  the  aggressor  "shall  pay  half  his  price."  Similarly  for  the 
loss  of  a  tooth  (sections  200,  201).  .  .  . 

^  Kohler,  "Zeitschrift  fiir  vergl.  Rechtswissenschaft,"  1897,  pp.  406,  407  ; 
Alvord,  in  "Schoolcraft,"  v.  653;  Morgan,  "League  of  the  Iroquois," 
331,  332.  (Failing  a  present  of  a  belt  of  white  wampum  the  family  of 
the  deceased  appointed  an  avenger.) 

5  Wailz,  V.  p.  i.  143.  The  wergild  varies  from  200  to  1000  gulden 
according  to  the  rank  of  the  dead  man.  In  case  of  poison,  the  poisoner 
becomes  the  slave  of  the  family.  A  paramour  may  be  enslaved  by  the 
husband  if  taken  in  the  act,  but  if  the  matter  is  brought  before  a  court, 
money  compensation  must  be  accepted. 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMIXAL    LAW  137 

casus,  the  Bedouins  of  the  Arabian  desert,  the  Somali  of  East 
Africa,  the  negroes  of  the  West  Coast,  the  Congo  folk  of  the  interior, 
the  KafRrs  and  Basutos  of  the  South. ^ 

5.  Primitive  vengeance,  then,  may  be  exacted  by  retaliation  or 
compounded  by  money  payments.  In  either  method  a  rough 
justice  is  embodied,  but  it  is  justice  enforced  by  the  strong  hand. 
Even  graver  differences  separating  barbaric  vengeance  from  civil- 
ized justice  have  now  to  be  mentioned.  These  differences  are  inher- 
ent in  the  nature  of  the  social  organization  upon  which  the  blood 
feud  rests.  For  the  blood  feud  is  retribution  exercised  by  a  family 
upon  a  family ;  it  rests  upon  the  support  which  each  individual 
can  count  upon  from  his  own  immediate  relations,  possibly  from 
his  whole  clan ;  it  rests,  in  a  word,  upon  the  solidarity  of  the 
kindred.  But  the  effect  of  this  solidarity  upon  the  working  of 
retributive  justice  is  by  no  means  wholly  favourable.  In  the 
first  place  it  has  the  effect  that  the  lives  of  members  of  other  clans 
are  held  indifferent.  A  perfect  illustration  is  afforded  by  the 
Ungani  Xagas,  a  tribe  of  the  Xorth-East  frontier  of  India  who  live 
in  villages  composed  of  two  or  more  "khels,"  as  their  clans  are 
called,  which,  though  living  side  by  side  and  intermarrying,^ 
are  for  purposes  of  defence  independent  communities.  A  hostile 
tribe  may  descend  upon  the  village  and  massacre  all  the  members 
of  one  "khel"  while  the  other  "khels"  sleep  peacefully  in  their 
beds  and  do  not  raise  hand  or  foot  to  protect  their  neighbours. 
This  is  cold-blooded,  but  it  is  not  without  a  certain  reason.  The 
exterminated  "khel"  has  incurred  a  feud  from  which  the  others 
are  free.  If  they  rise  in  its  defence  they  not  only  incur  the  danger 
of  the  present  fight,  but  they  also  involve  themselves  in  the  per- 
manent feud.'  Next,  in  so  far  as  justice  rests  on  the  blood  feud, 
and  the  blood  feud  is  of  the  nature  of  a  private  war  between  distinct 
families  or  clans,  it  follows  that  public  justice  will  not  deal  with 
offences  committed  within  the  family.  These  do  not  excite  the 
blood  feud.  In  some  cases  no  fixed  punishment  appears  to  be 
assigned  for  them,  but  this  may  happen  not  only  because  they  do 
not  belong  to  the  province  of  public  custom,  but  also,  perhaps, 
because  they  are  too  rare  for  any  definite  custom  to  have  arisen  for 
dealing  with  them.     Like  parricide  among  the  Romans,  they  repre- 

1  Post,  ii.  pp.  256,  257.  -  The  khel  is  exogamous. 

^  Godden,  ".J.  A.  I.,"  xx\n.  p.  167.  Similarly  in  contemporary  Africa, 
so  far  as  blood  revenge  holds,  the  slaying  of  any  one  outside  the  clan  is 
no  more  regarded  as  -wTong  than  the  killing  of  an  enemy  in  battle  among 
us.     {Post,  "  Afrikanische  Jurisprudenz,"  i.  60.) 


138  LAW   AND   THE   STATE  [Part  I. 

sent  the  absolute  ultimate  of  human  wickedness.  Further,  gen- 
erally speaking,  there  is  no  need  for  any  recognizable  general  rule, 
because  offences  within  the  family  are  dealt  with  by  the  arbitrary 
justice  of  the  paterfamilias  or  of  the  kin  collectively,  who,  even  if 
other  means  of  enforcing  authority  failed,  have  always  the  ready 
remedy  of  outlawry,  which  puts  the  offender  at  the  mercy  of  the 
firstcomer.^  Outlawry  from  the  clan  is  the  most  effective  of  all 
weapons,  because  in  primitive  society  the  exclusion  of  a  man  from 
his  kinsfolk  means  that  he  is  delivered  over  to  the  firstcomer  ab- 
solutely without  protection.  An  illustration  may  be  drawn  from 
the  early  history  of  Mahommed's  teaching,  when  the  Korais,  who 
found  that  Mahommed's  gospel  was  very  inimical  to  their  gains, 
wanted  above  all  things  to  put  him  out  of  the  way  and  made  the 
most  strenuous  eft'orts  to  induce  Mahommed's  uncle,  who  was  head 
of  the  clan,  to  disown  him.  Had  the  uncle  consented,  Mahommed 
would  have  been  left  without  protection  and  might  have  been  dis- 
patched by  any  one  without  fear  of  consequences,  but  till  the 
death  of  the  uncle  the  clan  stood  by  him ;  and  the  leading  men  of 
Mecca,  powerful  as  they  were,  were  not  bold  enough  to  take  upon 
themselves  a  blood  feud  with  Mahommed's  family.^  The  fear 
of  the  blood  feud  is  the  great  restraint  upon  disorder  in  primitive 
society,  and  conversely  he  whose  death  will  excite  no  blood  feud 
has  no  legal  protection. 

So  far  the  negative  side  of  clan  justice.  The  positive  side  has 
peculiarities  not  less  startling  to  the  modern  mind,  for  since  it  is 
a  member  of  one  body  who  has  done  a  wrong  to  a  member  of  another 
body,  the  whole  body  to  which  the  offending  member  belongs  is 
held  responsible  by  the  whole  body  to  which  the  injured  member 
belongs ;  and  it  is  not  merely  the  original  criminal  who  may  be 
punished,  but  logically  any  member  of  his  family  may  serve  as  a 
substitute.  Responsibility  is  collective,  and  therefore  also  vicari- 
ous.    Sometimes  the  whole  family  of  the  oft'ender  is  destroyed  with 

1  Among  African  peoples  there  is,  generally  speaking,  no  blood  feud 
for  homicide  within  the  clan.  But  among  the  South-Western  Arabs  the 
parricide  is  put  to  death,  and  for  fratricide  the  father  may  put  the  offender 
to  death  or  demand  the  blood  price.  {Post,  "A.  J.,"  i.  63.)  Among  the 
Bogos  the  slayer  of  brother  or  father  would  be  Idlled  on  the  spot  if  taken. 
But  if  he  escapes,  his  fate  will  depend  on  the  question  whether  his  victim 
has  or  has  not  left  children.  If  so  they  will  take  up  the  feud.  If  not  he 
can  make  his  peace  Avithout  payment,  and  then  inherit  Ms  brother's  prop- 
erty and  Avidow.  (lb.,  ii.  60.)  In  the  Malay  region  the  murder  of  a  rela- 
tive is  dishonouring,  but  has  no  money  penalty.  {Waitz,  v.  i.  149.)  For 
illustrations  of  the  variety  of  customs  under  this  head,  see  Steinmetz, 
ii.  153-176. 

2  Palmer,  "Introduction  to  the  Koran,"  pp.  24,  25. 


Chap.  VI,  §  2.]  EVOLUTION   OF    CRIMINAL    LAW  139 

him.^  Sometimes  any  relation  of  the  offender  may  suffer  for  him 
vicariously.  John,  who  has  done  the  deed,  being  out  of  reach, 
primitive  vengeance  is  quite  satisfied  with  the  life  of  Thomas,  his 
son,  or  brother,  or  cousin.  Just  as  in  the  blindness  of  warfare 
the  treacherous  act  of  an  enemy  is  generalized  and  perhaps  avenged 
in  the  next  battle  by  a  retaliation  which  does  not  stay  to  ask 
whether  it  is  falling  on  the  innocent  or  the  guilty,  so  in  the  primitive 
blood  feud.  The  wrong  done  is  the  act  of  the  family  or  clan  to 
which  the  aggressor  belongs,  and  may  be  avenged  on  any  member 
of  that  family  or  clan.^  Sometimes  the  retaliation  is  made  more 
specific  by  a  fresh  application  of  the  Lex  Talionis,  and  to  the  rule 
"eye  for  eye,"  there  is  the  pendant  "son  for  son,  daughter  for 
daughter,  slave  for  slave,  ox  for  ox."  You  have  slain  my  son? 
Then  the  true  and  just  retribution  is  that  I  should  slay  yours.^ 
It  is  my  daughter  who  is  slain?  Then  it  is  with  your  daughter 
that  you  must  pay  for  her.     Sometimes  vengeance  is  specially 

1  E.g.  among  the  Kaffirs,  at  Loango,  and  among  the  Barolong,  the 
relatives  are  held  responsil)le  for  payment  hy  the  accusers,  and  on  the 
Gold  Coast  the  relatives  of  the  sorcerer  are  slain  or  enslaved  along  with 
him.  {Post,  "A.  J.,"  i.  46.)  Among  the  North  American  Indians  the 
family  and  the  whole  tribe  were  held  responsible  for  a  mm-der  committed 
by  one  of  them.  {Waitz,  iii.  132.)  In  Anglo-Saxon  law  it  was  possible 
for  a  family  to  be  enslaved  for  a  theft  by  the  father.  {Pollock  and  Mait- 
land,  i.  56.) 

^  For  instances,  see  Post,  "Grundriss,"  i.  230  ff.  Professor  Tylor 
instances  the  Bedouins,  Australians,  South  Sea  Islanders,  and  Kaffirs, 
as  peoples  among  Avhom  the  blood  feud  involved  the  whole  clan.  ("  Con- 
temp.  Re\aew,"  1873,  p.  59.)  In  some  cases  the  wergild  involved  the 
sla^dng  of  several  persons  for  one.  Thus  by  Anglo-Saxon  law,  six  ceorls 
must  die  for  one  thegn.  {Pollock  and  Maitland,  ii.  450.)  Edmund  set 
himself  to  suppress  feuds,  forbidding  attacks  on  the  kindred  unless  they 
harbour  the  homicide.  Mahometan  law,  while  admitting  retaliation, 
restricts  it  to  the  offender.  {Post,  loc.  cit.)  But  the  kin  are  liable  for 
money  composition.  {Dareste,  p.  64.)  In  many  African  tribes  a  creditor 
will  seize  and  sell  as  a  slave  any  relation  of  the  debtor's  whom  he  can  find, 
or  even  any  member  of  the  same  town.  It  is  not  surprising  to  learn  that 
this  method  of  distraint  is  a  fruitful  source  of  war.  {Post,  "  A.  J.,"  ii.  140.) 
A  still  wilder  development  of  \'icarious  revenge  is  found  in  the  Gazelle 
Peninsula  among  the  Papuas,  where  the  husband  whose  wife  has  been 
stolen,  goes  into  the  bush  and  kills  the  first  man  he  meets.  This  man's 
kindred  do  the  same  thing,  and  the  process  is  repeated  till  the  stroke  lights 
upon  the  original  offender,  wliose  goods  have  to  pa3-  all  the  damage. 
{Kohler,  "Z.  f.  vgl.  Rechtsw.,"  1900,  p.  381.)  Cf.  a  similar  practice  in 
S.  Guinea.      {Post,  "A.  J.,"  ii.  22.) 

'  The  most  astonishing  case  is  in  the  treatment  of  the  builder  in  the 
code  of  Hammurabi,  229 :  —  "  If  a  builder  has  built  a  house  for  a  man  and 
has  not  made  strong  his  work,  and  the  house  he  built  has  fallen,  and  he 
has  caused  the  death  of  the  owner  of  the  house,  that  l)uilder  shall  be  put 
to  death. 

230.  If  he  has  caused  the  son  of  the  owner  of  the  house  to  die,  one 
shall  put  to  death  the  son  of  that  builder. 

231.  If  he  has  caused  the  slave  of  the  owner  of  the  house  to  die,  he 
shall  give  slave  for  slave  to  the  owner  of  the  house."  Though  barbaric, 
these  sections  might  have  a  use  if  suitably  posted  in  modern  suburbs. 


140  LAAV   AND   THE   STATE  [Part  I. 

directed  against  the  chief  as  representing  the  clan.  Sometimes 
it  may  be  visited  on  any  male,  or  even  on  any  adult  member  of 
the  clan,  children  alone  being  excluded.  Sometimes  this  last  shred 
of  humanity  is  torn  away.  The  principle  is  pushed  to  its  furthest 
and  most  revolting  development  among  the  head-hunting  tribes 
common  in  South-East  Asia,  in  which  magical  ideas  combine  with 
those  of  revenge,  and  the  skull  of  the  enemy  has  a  potency  of  its 
own  which  makes  its  possession  desirable  in  itself.  The  head 
of  a  child  or  woman  of  the  hostile  body  is  no  less  coveted  an 
object  than  that  of  the  fighting  warrior,  and  is  probably  easier  to 
obtain.  When  the  principle  of  composition  arises  collective 
responsibility  is  reduced,  by  a  less  barbarous  logic,  to  a  common 
pecuniary  liability.  The  clan  are  collectively  responsible  for  the 
blood  money  due  from  a  member,  and  by  the  same  logic  they 
are  the  collective  recipients  of  blood  money  due  to  any  member.^ 
And  as  with  blood  money  so  with  other  debts.-  There  is  a  col- 
lective liability  —  a  conception  which  in  this  softened  form  has 
its  uses  in  the  social  order,  and  is  in  fact  enforced  and  applied 
to  the  commune  —  though  in  right  it  belongs  rather  to  the  clan  — 
by  many  Oriental  Governments.^ 

6,  Further,  with  the  theory  of  collective  responsibility  goes 
almost  necessarily  the  failure  to  distinguish  between  accident 
and  design.  In  primitive  society  the  real  gravamen  of  a  charge 
against  an  aggressor  is  that  he  has  done  an  injury.  How  he  did 
the  injury,  whether  of  set  purpose  or  by  accident,  is  a  matter  of 
less  moment.  jNIy  son,  or  brother,  or  cousin,  or  clansman,  is 
killed ;  that  is  enough  for  me :  I  must  have  some  satisfaction  out 
of  the  man  who  did  it,  and,  Avhat  is  more,  my  family  must  have 
some  satisfaction  out  of  his  family.  Furthermore,  the  whole 
distinction  between  design  and  accident  is  by  no  means  so  clear 
to  primitive  man  as  it  is  to  us,  for  though  it  needs  little  reflec- 

1  E.g.  among  the  Bogos  and  Bedouins  {Post,  i.  253),  and  compare  Post, 
"A.  J.,"  i.  45  and  ii.  35.  For  collective  claims  on  the  blood  money,  c/. 
Tacitus,  "Germania"  (ap.  G.  Waitz,  "Deutsche  Verfassungsgeschichte," 
i.  32),  "recipitque  satisfactionem  universa  domus." 

2  E.g.  at  Great  Bassam.  {Post,  "A.  J.,"  i.  45.)  Among  the  Yoruba, 
Tshi,  and  Ewe  speaking  peoples,  collective  responsibility  which  formerly 
applied  generally  is  now  restricted  to  debts.  {Ellis,  "  Yoruba-speaking 
Peoples,"  229.)  Cf.  Waitz,  iv.  306.  —  In  Yucatan  the  whole  family  is 
responsible  for  debt. 

^  And  elsewhere ;  e.g.  at  Sierra  Leone  and  in  several  other  parts  of 
Africa,  responsibility  for  debt  extends  to  the  Commune.  {Post,  "A.  J.," 
i.  75.)  In  the  Malay  constitution  the  family  is  responsible  for  its  mem- 
bers, the  suku  (elan)  for  its  families,  the  village  for  its  sukus,  the  district 
for  its  villages.      {Waitz,  v.  i.  141.) 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMINAL   LAW  141 

tion  and  a  very  moderate  amount  of  self-knowledge  to  distinguish 
between  what  one  has  done  one's  self  by  accident  or  by  design, 
and  a  very  moderate  degree  of  reasoning  power  to  -apply  the 
distinction  to  other  men  —  still,  the  nascent  reflection  of  the 
savage  is  strangled  at  birth  by  the  prevailing  theory  of  witchcraft 
and  possession.  If  a  tree  falls  upon  a  man's  head  the  savage 
holds  that  a  spirit  guided  it.  If  a  man,  cutting  a  branch  from 
a  tree,  dropped  his  axe  on  to  another's  head,  it  may  not  have 
been  the  man's  own  soul  which  guided  the  axe,  but  it  was  another 
soul  which  possessed  him  temporarily  ;  he  was  possessed  by  some 
spirit,  and  as  possessed  he  should  be  put  out  of  the  way.^  The 
treatment  of  the  subject  in  the  Hebrew  codes  illustrates  the  difS- 
culty  which  is  experienced  even  at  a  higher  stage  in  strictly  dis- 
tinguishing between  the  two  spheres  of  design  and  accident.  Each 
code  assigns  a  city  of  refuge  for  the  excusable  homicide,  but 
none  makes  it  perfectly  clear  whether  it  is  unintentional  or  unpre- 
meditated man-slaying  that  is  in  view.  The  Book  of  the  Covenant 
simply  says,  "If  a  man  lie  not  in  wait,  but  God  deliver  him  (the 
victim)  into  his  hand,  then  I  will  appoint  thee  a  place  whither  he 
shall  flee.  And  if  a  man  come  presumptuously  upon  his  neighbour 
to  slay  him  with  guile,  thou  shalt  take  him  from  mine  altar  that 
he  may  die."-  In  Deuteronomy  there  is  an  attempt  to  define 
accident.  The  city  of  refuge  is  appointed  for  "whoso  killeth 
his  neighbour  unawares  and  hated  him  not  in  times  past."  The 
first  qualification  would  be  true  of  unintentional,  the  second 
of  unpremeditated  homicide.  Then  follows  a  somewhat  elaborate 
illustration  of  a  case  of  pure  accident.^  "  As  when  a  man  goeth  into 
the  forest  with  his  neighbour  to  hew  wood,  and  his  hand  fetcheth 
a  stroke  with  the  axe  to  cut  down  the  tree,  and  the  head  slippeth 
from  the  helve,  and  lighteth  upon  his  neighbour,  that  he  die, 
he  shall  flee  unto  one  of  these  cities  and  live:"  and  then  it  is 
once  more  stated  that  the  slayer  ought  not  to  die,  "inasmuch 
as  he  hated  him  not  in  time  past,"  which  would  be  true  of  any  want 
of  premeditation.  Furthermore,  even  in  this  relatively  enlightened 
code  the  unintentional  slayer  is  not  fully  protected.  It  is  clearly 
anticipated  that  the  "avenger  of  blood"  will  pursue  him  "while  his 
heart  is  hot,  and  overtake  him  because  the  way  is  long,"  and  smite 
him  mortally,  and  there  is  no  hint  that  the  avenger  will  be  punished. 

I  Post,  "A.  J.,"  ii.  29.  In  West  Equatoria  the  man  who  injures  another 
in  cutting  down  a  tree  is  held  the  agent  of  an  indweUing  magical  power, 
and  must  submit  to  the  ordeal  of  Mbundu  drinking.      (76.) 

■  Exodus  xxi.  13,  14. 

'  Deut.  xix.  4-6. 


142  LAW   AND   THE    STATE  [Pabt  I. 

Nor  was  the  alternative,  exile  to  the  city  of  refuge,  a  merely 
nominal  penalty.  Finally,  in  the  Priestly  Code  there  is  an  elabo- 
rate attempt  to  distinguish  different  cases.  The  cities  of  refuge  are 
appointed  for  every  one  that  "killeth  any  person  unwittingh-," 
or,  as  the  margin  renders  it,  "through  error."  (An  attempt  is 
made  to  render  the  meaning  clearer  by  specifying  the  implements 
used,  of  iron,  wood  or  stone.)  On  the  other  hand,  he  who  has 
killed  another,  "lying  in  wait"  or  "in  enmity,"  is  to  be  put  to 
death  by  the  avenger  of  blood  "when  he  meeteth  him."  In 
intermediate  cases  the  congregation  shall  judge.  "But  if  he 
thrust  him  suddenly  without  enmity,  or  hurled  upon  him  any- 
thing without  lying  in  wait,  or  with  any  stone,  whereby  a  man 
may  die,  seeing  him  not,  and  cast  it  upon  him,  so  that  he  died, 
and  he  was  not  his  enemy,  neither  sought  his  harm :  then  the 
congregation  shall  judge  between  the  smiter  and  the  avenger  of 
blood  according  to  these  judgments."  ^  Even  here,  then,  the  three 
cases  of  accident  ("seeing  him  not"),  assault  without  intent  to 
kill  ("thrust  him  suddenly")  and  unpremeditated  homicide 
("without  lying  in  w^ait")  seem  to  be  in  a  measure  confused. 
And  even  in  this  code  the  avenger  may  sla^^  the  man-slayer  any- 
where outside  the  borders  of  the  city  of  refuge  until  the  death  of  the 
high  priest. 

Not  infrequently  in  early  law  we  find  the  distinction  that  luiin- 
tentional  homicide  is  atonable  by  paying  the  wergild,  while  de- 
liberate murder  gives  rise  to  the  blood  feud.  Thus  in  the  code  of 
Hammurabi  -  the  homicide  might  swear  that  the  blow  was  unin- 
tentional and  escape  with  a  fine.  So,  again,  though  Germanic 
law  begins  by  holding  a  man  equally  imputable  for  all  that  he  has 
done,  it  is  an  ancient  mitigation  that  for  unintentional  homicide 
the  wer  is  due,  and  the  blood  feud  should  not  be  waged. ^  The  dis- 
entanglement of  innocent  from  culpable  homicide  was  a  very 
gradual  achievement  in  mediaeval  Europe  though  aided  by  the 
Civil  and  Canon  Law,  and  the  forfeiture  of  goods  —  the  direct 

1  Numbers  xxxv.  15,  20,  21,  22-24. 

2  Hammurabi,  206-208. 

'  Pollock  and  Maitland,  ii.  470  and  471.  In  many  eases,  however,  the 
innocent  homicide  can  only  escape  by  a  recommendation  to  mercy.  In 
the  Anglo-Saxon  law  the  distinction  is  not  so  much  between  intentional 
and  unintentional  as  between  open  and  secret  slaying.  {Ih.,  i.  52.)  This 
recalls  the  difficulties  in  Deut.  and  Numbers.  Generally  speaking,  ac- 
cording to  Post,  "A.  .1.,"  ii.  28,  the  responsibility  of  the  agent  is  not 
presumed  as  a  ground  of  his  punishment  in  Africa.  But  in  some  eases, 
as  in  Aquapin  and  Ashanti,  the  penalty  for  an  accidental  offence  is  re- 
duced, and  later  (in  contradistinction  to  earher),  Kaffir  law  imposes,  as 
a  rule,  no  penalty  on  accidental  homicide. 


Chap.  VI,  §  2.]  EVOLUTION    OF   CRIMINAL   L.\W  143 

survival  of  the  wergild  —  remained  in  theory  in  English  law  down 
to  1828.1 

It  is  a  natural,  though,  to  our  minds,  a  bizarre  consequence  that 
in  early  justice  animals  and  even  inanimate  objects  ma\'  be  re- 
garded as  appropriate  subjects  of  punishment.  The  slaying  of 
offending  animals  is  provided  for  in  the  Book  of  Exodus.  ]Many 
cruel  punishments  were  inflicted  upon  animals  in  the  code  of  the 
Zendavesta,^  and  the  same  thing  occurred  in  mediaeval  Europe, 
where,  perhaps  under  the  influence  of  the  ^Mosaic  legislation,  it 
even  survived  in  isolated  cases  to  the  sixteenth  or  seventeenth 
century.^  The  punishment  of  animals  and  inanimate  objects  was 
no  mere  wreaking  of  blind  fury  on  innocent  creatures.  Probably 
to  the  primitive  mind  the  ox  that  gored  a  man,  the  sword  that  slew, 
and  the  murderer  that  wielded  it  were  much  more  on  one  level  than 
they  can  be  to  us.  The  animal  or  tool,  if  not  conscious  themselves, 
might  be  endued  with  a  magic  power  or  possessed  with  an  evil 
spirit.  It  was  well  to  get  rid  of  them  before  they  did  more  harm. 
If  not  destro}'ed  they  might  be  purified.  Thus  in  the  English  law 
of  Deodand,  which  was  not  abolished  till  the  middle  of  the  last 
century,  there  is  a  survival  of  the  view  that  an%i:hing  that  has 
killed  a  man  must  undergo  a  kind  of  religious  purification  ;  a  cart, 
for  instance,  which  ran  over  a  man,  or  a  tree  which  fell  on  him 
was  confiscated  and  sold  for  charity  —  at  bottom  merely  a  some- 
what humanized  version  of  the  ancient  Athenian  process  whereby 
the  axe  that  had  slain  a  man  was  brought  to  trial,  and,  if  found 
guilty,  solemnly  thrown  over  the  boundary.  It  need  hardly  be 
added  that  where  responsibility  is  extended  to  animals  and  inani- 
mate objects,  it  is  apt  to  be  inadequately  defined  in  the  case  of 
idiots,  lunatics,  and  minors."* 

The  principle  of  collective  responsibility  does  not  necessarily 
disappear  with  the  rise  of  public  justice  under  central  authority. 
It  lingers  on,  partly  through  sheer  conservatism,  but  also  in  many 
cases  for  political  reasons,  to  a  late  date.     Thus  it  is  particularly 

1  Blackstone,  iv.  p.  188.  In  practice  "as  far  back  as  our  records  reach," 
the  defendant  could  obtain  a  pardon  and  writ  of  restitution.  The  clear 
demarcation  of  indi\ddual  responsibility  is  far  from  being  uni\^ersal  in 
ci\T[lized  law.  In  the  Mahometan  world  a  man's  family  is  collectively 
responsible  even  for  damage  done  by  him  involuntarily.  {Post,  "Grun- 
driss,"  ii.  216,  cf.  Darcste,  p.  64.)  '  In  China  involuntary  offences  are 
punished,  though  on  a  reduced  scale.  In  the  Japanese  code  of  1871  acci- 
dental injury  to  parents  is  hea\ily  punished.      {Post,  ii.  p.  218.) 

^  Entirely,  no  doubt,  under  the  influence  of  magical  ideas. 

'  For  other  instances,  see  Post,  ii.  231. 

*  See  Post,  ii.  219,  and,  for  the  variation  of  custom  under  this  head, 
Westermarck,  "Moral  Ideas,"  pp.  265-277. 


144  LAW   AND   THE   STATE  [Part  I. 

common  to  find  that  in  political  offences  the  family  of  the  offender 
suffers  with  him.  The  principle  of  collective  responsibilit}-  has 
always  been  maintained  in  the  Far  East,  in  China/  in  the  Korea, 
and,  under  the  influence  of  Chinese  civilization,  in  Japan,  while  it 
is  noteworthy  that  for  political  oft'ences  the  parents  and  children 
might  be  punished  under  French  law  right  down  to  the  time  of 
the  Revolution.  Parallels  could  be  found  in  the  laws  of  the  ancient 
East,  of  ancient  Persia,"  and  of  many  states  of  mediaeval  Europe. 
It  is,  in  fact,  only  the  decay  of  the  joint  family  system  and  the  rise 
of  the  free  individual  as  the  basis  of  the  modern  State  which 
definitely  does  away  with  this  principle,  so  fundamentally  irrec- 
oncilable with  the  strictly  ethical  notion  of  justice.  An  interesting 
transitional  phase  is  to  be  found  in  the  Old  Testament,  where  the 
visiting  of  the  sins  of  the  fathers  upon  the  children  is  very  definitely 
laid  down  as  a  piece  of  Divine  justice  in  the  earlier  legislation  (I 
mean  in  the  second  Commandment),  whereas  in  the  time  of  Ezekiel 
it  was  strongly  maintained  to  be  an  injustice  that  when  the  fathers 
had  eaten  sour  grapes  the  children's  teeth  should  be  set  on  edge. 
It  was,  in  fact,  part  of  the  ethical  revolution  introduced  by  the 
later  prophets  to  establish  morally  for  the  Jewish  code  the  principle 
of  individual  responsibility.^ 

1  Post,  ii.  p.  226.  With  this  is  associated  punishment  for  unintentional 
offences.  (76.,  217.)  In  Chinese  law,  accidental  parricide  is  still  capital, 
though  the  older  law  appears  to  have  been  mitigated.  A  man  who  acci- 
dentally killed  his  mother  in  attempting  to  defend  her,  was  sentenced 
to  the  lingering  death,  commuted  by  special  decree  to  decapitation,  sub- 
ject to  the  Empress's  pleasure.  See,  for  various  instances.  Alabaster, 
p.  159  ff.  A  wdfe  killing  her  husband  unintentionally  is  sentenced  to 
decapitation.  {lb.,  192.)  A  misdeed  which  however  indirectly  caused 
the  death  of  a  senior  relation  is  also  punished,  if  the  relative  be  a  parent, 
by  death.  {lb.,  320  seq.)  A  senior  relative  is  punishable  for  a  junior's 
offence,  even  if  he  knows  notliing  of  it.  E.g.  a  father  was  sentenced  to 
one  hundred  blows  because  (unknown  to  him)  his  son  had  abducted  a  girl. 
{Alabaster,  p.  152.)  A  junior  relation  is  still  more  heavily  punishable 
for  the  offence  of  a  senior.  If  a  man  murders  four  members  of  one  family 
he  suffers  the  lingering  process,  and  his  male  children,  irrespective  of  age, 
die  with  him  in  equal  number  to  those  murdered.  In  the  case  of  Wang 
Chih-pin  a  child  of  ten  was  condemned  to  death  for  murders  by  his  father. 
In  another  instance,  the  children  were  condemned  to  be  castrated,  the 
father  ha\'ing  killed  three  persons.  {lb.,  164.)  The  motive  is  partly  to 
punish  the  murderer's  spirit  by  cutting  off  his  male  descendants,  on  whose 
offerings  he  depends  in  the  new  Ufe.      {lb.,  58.) 

2  Post,  ii.  227. 

3  Ezek.  xviii.  2;  Jer.  xxxi.  29.  The  result  is  embodied  in  Deut.  .xxiv. 
16.  "  The  fathers  shall  not  be  put  to  death  for  the  children,  neither  shall 
the  children  be  put  to  death  for  the  fathers :  every  man  shall  be  put  to 
death  for  his  own  sin."  The  same  transition  is  found  in  the  law  of  the 
Visigoths.  "Let  not  father  for  son,  nor  son  for  father,  nor  brother  for 
brother  fear  any  accusation,  but  he  alone  shall  be  indicted  as  culpable 
who  shall  have  committed  the  fault."  {Sutherland,  "Origin  and  Growth 
of  the  Moral  Instinct,"  ii.  168.)  By  Salic  law  a  man  might  cut  himself  off 
from  his  family,  but  then,  of  course,  he  also  lost  its  protection.      {lb.,  167.) 


Chap.  VI,  §  2.]  EVOLUTION    OF   CRIMINAL   LAW  145 

7.  With  the  evohition  of  social  order,  and  in  particular  with 
the  growth  of  central  authority,  the  redress  of  wrongs  begins  to 
take  the  form  of  an  independent  and  impartial  administration  of 
justice.     Let  us  trace  this  growth  in  outline  from  its  beginnings. 

The  blood  feud  proper  is  revenge  guided  and  limited  by  custom. 
It  is  not  justice.  It  is  waged  by  two  conflicting  parties,  and  there 
is  no  impartial  third  party  to  judge  between  them.  But  even  in 
barbaric  society  the  blood  feud  does  not  rage  wholly  without  check. 
The  public  opinion  of  the  group  is  always  a  force  to  be  reckoned 
with.  Every  man's  rights  and  obligations  are  fixed  by  custom. 
The  very  vengeance  taken  on  those  who  infringe  them  is  a  custom, 
and  directed  in  all  its  details  by  tradition.  The  headman  or  the 
elders  of  the  clan  or  village  are  prepared  to  listen  to  complaints, 
to  decide  whether  a  wrong  has  been  done,  and,  if  so,  what  the 
reparation  ought  to  be.  The  injured  party  may  appeal  to  them  if 
he  pleases,  and  it  may  be  that  the  aggressor  will  abide  by  their 
decision.  If  so,  the  affair  is  arranged  perhaps  by  composition, 
perhaps  by  a  stated  penalty.  Otherwise  the  parties  will  fight 
it  out  or  it  will  come  to  a  feud.  In  short,  there  is  an  effort  on  the 
part  of  the  leading  men  to  keep  the  peace  and  adjust  the  quarrel. 
Sometimes  they  will  intervene  of  themselves  if  a  feud  becomes 
serious  and  threatens  the  general  peace. ^ 

The  "court,"  if  so  it  may  be  called,  appears  at  this  stage  rather 
as  peacemaker  than  judge."  •  The  disputants  may  ignore  it,  pre- 
ferring to  trust  to  their  own  strength  and  that  of  their  friends. 
Yet  it  is  from  the  first  the  avenger's  interest  to  have  public  opinion 
with  him.  He  relies  on  the  countenance  and  practical  help  of 
his  kindred  and  fellow-tribesmen.  At  least  he  must  avert  their 
opposition.  If  the  facts  are  peculiarly  flagrant  the  neighbours 
will  be  with  him  and  he  will  have  the  less  difficulty  in  executing 
vengeance.^  Perhaps  even  the  kindred  of  the  wrong-doer  will 
refuse  to  stand  by  him.  Thus  it  becomes  the  interest  of  the 
avenger  to  make  his  case  plain  to  the  neighbours  and   they  in 

^  Thus  among  the  Esquimaux,  according  to  Reclus,  murder  was  avenged 
bj^  the  nearest  relative,  but  if  fresh  retaliation  ensued,  several  villages 
intervened  and  the  chief  men  pronounced  sentence,  otherwise  public  inter- 
vention was  very  rare.      ("Primitive  Folk,"  p.  85.) 

^  Thus  among  the  Kondhs  we  read  that  society  intervenes  to  prevent 
revenge  by  composition,  "which  has  in  \aew  exclusively  the  private  satis- 
faction of  individuals,  not  the  vindication  of  any  civil  or  moral  rules  of 
right."  Hence,  notwithstanding  this  intervention,  retaliation  is  generally 
the  sole  remedy  for  wTongs  of  wiiatever  order.  {Macpherson,  "Memorials 
of  Service  in  India,"  p.  81.) 

^  There  may  ])e  no  trial  and  no  set  form  of  justice,  but  merely,  as  among 
the  Central  Australians,  a  meeting  convened  by  the  elder  men  to  carry 
out  the  act  of  vengeance.      (See  Spencer  and  Gillen,  ii.  556-568.) 


146  LAW   AND   THE   STATE  [Part  I. 

turn  wish  to  hear  what  the  accused  party  has  to  say.  A  palaver 
is  held.  The  avenger  comes  with  his  kinsmen  and  friends.  They 
state  their  case  and  announce  their  intention  of  seeking  revenge. 
The  accused  is  also  present,  backed  by  his  kin,  and  repels  the  de- 
mands made  on  him.  It  may  be  that  the  matter  is  settled  between 
the  groups  concerned.  It  may  be  that  the  neighbours  or  the  chief 
give  sentence,  but  even  so  it  does  not  follow  that  they  enforce  it. 
They  may  give  the  appellant  their  moral  support,^  and  leave  it  to 
him  to  obtain  satisfaction  as  best  he  can.  But  of  course  their 
decision  helps  him  to  get  the  opinion  of  the  tribe  on  his  side,  and 
their  moral  force  will  be  translatable  into  physical  force.  It  will 
mean  so  many  more  backers  for  him,  and  so  many  less  for  his 
opponents.  This  support  may  be  disdained  by  the  strong,  but  it 
will  be  valued  by  the  weak,  and  will  be  upheld  by  those  who  desire 
internal  peace.  Thus  even  under  the  clan  and  tribal  organiza- 
tion of  society  some  form  of  public  intervention  may  arise  alongside 
of  private  redress.  Feuds  are  averted  by  the  adjustment  of  dis- 
putes, or,  if  a  wrong  has  been  done,  by  getting  the  complainant 
to  accept  composition,  and  the  aggressor  to  undergo  some  penalty 
which  w^ill  be  a  mitigated  form  of  revenge,  or  by  bringing  the  two 
parties  to  fight  it  out  under  the  regular  forms  of  a  duel. 

Such  methods  of  mitigating  the  blood  feud  are  stimulated  by 
the  growth  of  the  kingly  power  —  that  is  to  say,  of  an  organized 
force  outside  the  contending  families  or  clans,  which  can  summon 
them  before  its  bar,  decide  their  cause,  and  require  them  to  keep 
the  peace.  The  king,  whose  duty  and  interest  it  is  to  maintain 
public  order,  treats  crime  —  or  certain  kinds  of  crime  —  no  longer 
as  an  offence  against  the  individual  whom  it  primarily  affects,  but 
as  a  menace  to  public  tranquillity,  a  breach   of  his   "peace."  ^ 

1  Thus  among  the  North  American  Indians,  the  Ojibways  and  the 
Wyandots  and  other  tribes  have  a  council  before  which  the  avenger  gets  a 
judgment  in  his  favour.  He  then  demands  compensation,  and  that  fail- 
ing, takes  revenge.  {Kohler,  "Z.  f.  v.  R.,"  1897,  p.  407.)  So  again  in 
the  Malaj^  region  cases  come  before  the  chief  of  the  suku,  or,  if  grave, 
before  a  gathering  of  cliiefs,  but  the  execution  of  the  murderer  falls  to  the 
nephew  of  the  deceased.      (Waitz,  v.  i.   143.) 

^  Common  in  Germanic  law.  See,  for  England,  Pollock  and  Maitland, 
ii.  451.  The  Kaffirs  distinguish  (1)  offences  against  the  Idng,  which 
consist  in  infringements  upon  his  property  or  the  number  of  his  subjects. 
In  these  they  include  treason,  sorcery,  murder,  cruelty,  rape,  and  abor- 
tion. (2)  Offences  against  private  people,  which  include  adultery,  immo- 
rality, theft,  injury  to  a  garden,  etc.  A  similar  distinction  is  found  among 
the  Kimbunda.  {Post,  "A.  J.,"  ii.  .54.)  This  is  in  effect  a  rudimentary 
distinction  between  civil  and  criminal  justice,  and  shows  at  least  one 
avenue  of  transition  to  the  conception  of  public  crime.  The  notion  of 
injm-y  to  an  indi-vidual  is  applied  to  the  king,  but  owing  to  the  king's 
special  relation  to  the  community,  the  notion  in  being  applied  to  him  is 


Chap.  VI,  §  2.]  EVOLUTION    OF   CRIMINAL    L.\W  147 

This,  if  he  is  strong  enough,  he  will  punish  directly ;  if  not  suffi- 
ciently strong,  he  will  deprive  the  offender  of  his  protection, 
put  him  outside  the  king's  peace,  and  compel  him  by  fine  to  buy 
back  what  he  has  lost.  Thus  we  find  crime  punishable  by  wite  as 
well  as  by  bot  —  a  fine  to  the  king  side  by  side  with  compensation 
to  the  kinsfolk. 

But  from  moral  assistance  the  transition  to  physical  assist- 
ance is  not  very  difficult  in  idea,  however  slow  and  cumbrous  it 
may  have  been  in  practice.  There  is  more  than  one  method  of 
transition.  Sometimes  we  find  the  public  authority,  the  elders 
or  the  whole  body  of  the  neighbours,  or  later  the  regular  magistrate 
exerting  themselves  to  arrest  the  offender  and  handing  him  over 
to  the  avenger  of  blood  for  execution,  or  judging  between  the 
avenger  of  blood  and  the  man-slayer,  whose  act  was  "unwitting." 
Thus  in  Deuteronomy,  if  the  deliberate  murderer  flies  to  a  city  of 
refuge,  "then  the  elders  of  his  city  shall  send  and  fetch  him  thence 
and  deliver  him  into  the  hand  of  the  avenger  of  blood  that  he  may 
die."  ^  But  without  taking  an  active  part  in  the  pursuit  and  cap- 
ture of  the  offender  the  court  had  an  effective  weapon  in  the  power 
of  outlawry.  Since  in  accordance  with  early  ideas  all  personal 
rights  depend  upon  membership  of  a  society  united  for  mutual 
protection,  it  follows  that  the  man  excluded  from  the  group 
is  in  the  position  of  a  stranger  and  an  enemy ;  he  is  a  wolf's 
head,  a  wild  animal  whom  the  firstcomer  may  put  to  death  at 
sight,  with  whom  nobody  may  associate,  to  whom  nobody  may 
give  food  or  lodging.  Outlawry  can  therefore  be  applied 
either  as  a  punishment  or  as  a  process  —  as  a  method  of  bringing 
the  accused  into  court.  \Vliat  more  reasonable  than  that  if  he 
will  not  submit  to  law  he  shall  lose  the  protection  of  the 
law?  With  this  weapon,  potent  in  proportion  as  the  social 
order  is  developed,  the  court  of  early  law  consolidates  its 
authority,  and  from  being  a  casual  institution  of  voluntary 
resort  for  those  who  wish  the  sympathy  of  their  neighbours  in 
avenging  their  wrongs,  becomes  an  established  authority  with 
compulsory  powers  before  which  either  party  can  be  summoned 
to  appear  at  the  instance  of  his  opponent. 

unavoidably  extended  and  modified.     In  fact,  potentially  it  covers  all  anti- 
social action. 

1  Deut.  xix.  12.  So  still  in  the  priestly  code,  Numbers  xxxv.  12-25. 
The  Law  of  the  Germanic  peoples  in  the  Frankish  period,  appears  in  a 
transitional  stage.  The  Eastern  Goths,  Burgundians,  Bavarians,  and 
Anglo-Saxons  left  execution  to  the  complainant.  The  law  of  the  Western 
Goths  excluded  private  execution ;  the  Salic  law  gave  the  complainant 
the  choice.      {Schroder,  p.  371.) 


148  L.'VW   AND   THE   STATE  [Paht  I. 

S.  But  we  are  still  a  long  way  from  a  modern  Court  of  Justice. 
The  primary  function  of  a  court  thus  established  is  not  so  much 
to  discover  the  merits  of  the  case  and  make  an  equitable  award, 
as  to  keep  the  peace  and  prevent  the  extension  of  wild  and  irregular 
blood  feuds.  What  the  court  has  to  deal  with  is  the  fact  that  a 
feud  exists.  A  comes  before  it  with  a  complaint  against  B  of 
having  killed  his  kinsman,  or  stolen  his  cattle,  or  carried  off  his 
daughter.  Here  is  a  feud  which,  in  the  absence  of  a  court,  A  will 
prosecute  with  his  own  right-arm,  and  that  of  his  kinsmen  if  he 
can  get  them  to  help  him.  B,  again,  will  resist  with  the  help  of  his 
kinsmen,  and  so  there  will  be  a  vendetta.  The  court,  whose 
primary  object  is  to  secure  a  settlement,  does  not  go  into  nice 
questions  as  to  the  precise  merits  and  demerits  of  A  and  B,  but  it 
can  prescribe  certain  tests  w^hereby  the  appellant  or  the  defendant 
may  establish  his  case.  It  sets  the  litigant  "  a  task  that  he  must 
attempt.  If  he  performs  it,  he  has  won  his  cause."  ^  The  perform- 
ance of  tjiis  task*is*  not,  to  our  minds,  proof  of  the  Justice  of  his 
cause.  It  is  rather  the  compliance  with  a  legal  and  orderly 
method  of  establishing  a  case,  but  at  the  stage  we  are  considering 
it  was  probably  regarded  as  satisfying  justice,  at  least,  as  far  as 
justice  claimed  to  be  satisfied. 

What  task,  then,  would  the  court  award?  It  might  be  that 
the  litigant  should  maintain  his  cause  with  his  body.  The  parties 
would  then  have  to  fight  it  out  in  person  or  by  their  champions. 
Here  we  have  the  method  of  the  blood  feud,  but  regularized,  limited, 
and  transformed  into  the  judicial  duel.  Again,  the  court  might 
put  one  or  both  parties  to  the  oath.  But  this  is  not  the  oath  of 
the  modern  Law  Court  —  that  is  to  say,  it  is  not  a  solemn  assevera- 
tion of  the  truth  of  certain  evidence  of  fact,  but  an  assertion  of 
the  general  justice  of  the  claim  alleged,  or  of  its  injustice,  as  the 
case  may  be.  And  as  the  feud  will  not  be  waged  by  the  individual 
claimant  alone,  but  with  the  aid  of  all  his  kindred,  so  the  court 
will  expect  the  kindred  to  come  and  take  the  oath  along  with  him. 
Hence  the  institution  of  oath-helpers,  the  compurgators,  who  are  in 
point  of  fact  the  fellow-clansmen,  all  bound  to  the  duty  at  this 
stage  of  swearing  their  friend  out  of  the  difficulty,  just  as  before 
they  were  bound  to  help  him  out  of  it  by  arms.  The  compurgators 
are  simply  the  clansmen  fighting  with  spiritual  weapons  instead  of 
carnal  ones.  Success  in  the  cause  will  depend  not  on  the  opinion 
formed  by  the  court  as  to  the  veracity  of  one  side  or  the  perjury  of 
the  other,  but  on  the  ability  of  the  parties  to  get  the  full  number  of 
1  Pollock  and  Maitland,  ii.  602. 


Chap.  VI,  §  2.]  EVOLUTION   OF   CRIMINAL   LAW  149 

compurgators  required,  on  formal  correctness  in  taking  the  oath, 
and  if  both  parties  fulfil  all  conditions  and  no  further  means  are 
available  for  deciding  between  them,  on  certain  rules  as  to  the 
burden  of  proof/ 

The  provision  of  such  further  means  of  deciding  between  the 
parties  is  logically  the  next  step.  So  far,  the  judicial  process  has 
appeared  merely  as  a  regularization  of  the  blood  feud,  but  both  the 
oath  and  the  judicial  combat  point  the  way  to  a  higher  ideal. 
The  court  itself  is  not  in  a  position  to  try  the  merits  of  the  case 
unless  it  be  some  very  simple  matter  of  the  criminal  caught  red- 
handed,  but  it  may  refer  the  decision  to  the  Unseen  Powers, 
to  the  Gods,  or  to  the  magical  qualities  inherent  in  certain  things. 
Thus  the  judicial  duel,  instead  of  being  a  mere  carnal  fight  regu- 
larized and  limited  by  certain  rules,  may  be  conceived  rather 
as  an  appeal  to  the  judgment  of  God,  and  the  victory  as  His  sen- 
tence which  the  court  hesitates  to  pronounce  on  the  basis  of  its 
merely  human  wisdom.  Similarly  the  oath  —  though  less  than 
evidence  as  we  conceive  evidence  —  is  also  more,  for  it  is  an  appeal 
to  powers  in  which  primitive  man  implicitly  believes,  to  take  ven- 
geance on  him  who  swears,  if  his  cause  be  not  just.  Hence  the 
form  of  the  oath  is  everything,  for  the  Unknown  powers  are  great 
sticklers  for  form.  The  oath-taker  calls  down  their  punishment  on 
himself  and  his  family  b}'  a  set  formula  which  they  will  rigidly  obey. 
If  in  the  formula  he  can  leave  himself  any  loophole  of  escape  the 
oath  is  void  :  it  is  no  true  summoning  of  the  vengeful  powers,  and 
the  court  will  disregard  it,  but  if  it  is  complete  and  sound  in  point 
of  form,  then  there  is  no  escape.  One  of  two  things  must  happen  : 
either  the  oath  was  true  or  the  curse  will  fall,  and  thus  perjury 
brings  its  own  punishment.^ 

Hence  it  is  that  for  any  given  charge  the  law  may  call  upon 
a  man  to  purge  himself  by  oath,  or  perhaps  to  purge  himself  along 

'  Which  oath  prevailed  in  ease  of  a  conflict,  would  be  decided  according 
to  the  custom  ruling  the  case.  One  party  would  be  "nearer  to  the  oath" 
than  the  other.  For  instance,  where  the  criminal  is  caught  in  the  act, 
the  oath  of  the  prosecutor  with  his  oath-helpers  is  conclusive  proof  and 
the  offender  has  no  opportunity  of  self-defence.  (Schroder,  p.  363; 
cf.  Pollock  and  Mnitland,  ii.  579.)  In  the  Frankish  period  the  complain- 
ant might  also,  if  the  circumstances  allowed,  demand  the  ordeal ;  in  other 
cases,  with  a  few  exceptions,  the  burden  of  proof  was  on  the  opposite 
side.  (Schroder,  op.  cit.,  pp.  363-366.)  Where  the  oath  is  not  decisive, 
the  parties  go  to  the  duel  or  to  the  ordeal. 

^  Thus  the  subsequent  misfortune  is  taken  as  proof  of  perjury,  and 
sometimes  with  a  certain  inconsistency  the  secular  arm  is  then  called  in 
to  increase  the  penalty.  Thus  among  the  Kondhs  of  Orissa.  and  also 
among  the  Congo  people,  if  the  curse  falls,  the  oath-taker  is  banished 
along  with  his  family.      (Post,  ii.  493.) 


150  LAW  AND   THE   STATE  [Part  I. 

with  a  specified  number  of  oath-helpers  who  will  suffer  with  him 
if  the  oath  is  false,  and  the  oath-helpers  required  may  be  increased 
according  to  the  seriousness  of  the  crime.  If  the  oath  fails  the 
prescribed  punishment  follows.  If  it  is  duly  taken,  then  either 
the  accused  was  innocent,  or  he  has  inflicted  the  punishment 
entailed  by  the  broken  oath  on  himself  and  his  oath-helpers. 

But  the  consequences  of  a  false  oath  were  not  immediately 
apparent.  If  the  court  wished  to  have  the  judgment  of  the  Un- 
seen Powers  before  it,  some  more  summary  process  was  necessary. 
This  was  found  in  the  Ordeal,  a  test  to  which  both  parties  could 
be  submitted  if  necessary",  and  of  which  the  results  were  immediate 
and  manifest.  Probably  no  institution  is  more  universal  at  a 
certain  stage  of  civilization  than  that  of  testing  the  truth  or  falsity 
of  a  case  by  a  certain  magico-religious  process  —  the  eating  of  a 
piece  of  bread,  the  handling  of  burning  iron  or  boiling  oil,  jumping 
into  water,  walking  through  fire,  exposure  to  wild  beasts,  and  so 
forth.  The  details  vary,  though  even  in  details  resemblances 
crop  up  at  the  most  remote  periods  and  in  the  most  remote  places, 
but  the  general  principle  is  still  more  clearly  constant  through  the 
ages  and  the  climes.  Truth  cannot  at  this  stage  be  tested  by 
human  evidence.  At  most  the  criminal  caught  red-handed  may 
be  summarily  dispatched  upon  the  evidence  of  eye-witnesses  given 
there  and  then,  but  the  complicated  civil  or  criminal  processes  of 
the  civilized  world  imply  an  intellectual  as  well  as  a  moral  develop- 
ment which  makes  them  impossible  at  an  early  stage.  It  is  the 
gods  who  judge ;  the  man  who  can  handle  hot  iron  is  proved  by 
heaven  to  be  innocent;  the  woman  whom  the  holy  river  rejects 
is  a  witch ;  he  whom  the  bread  chokes  is  a  perjurer.  Nor  are 
these  tests  wholly  devoid  of  rational  basis ;  it  is  not  so  difficult 
to  understand  that  the  guilty  man  would  be  more  liable  to  choke 
than  the  innocent,  not  because  bread  is  holy,  but  because  his 
nerves  are  shaken.  It  is  quite  intelligible  that  in  a  credulous  age 
the  false  oath  would  bring  its  curse  in  the  form  of  a  will  paralyzed 
by  terror,  just  as  we  know  that  amongst  many  savages  witch- 
craft really  kills  through  the  sufferer's  intense  fear  of  it.  Lastly, 
if  the  criminal  may  be  ready  to  take  his  chances  of  the  curse  in 
preference  to  the  certainties  of  the  scaft'old,  he  may  find  it  difficult 
to  get  compm-gators  to  stand  by  him,  and  in  the  face  of  their  plain 
knowledge  involve  themselves  in  the  same  risk. 


Chap.  VI,  §  3.]  EVOLUTION   OF   CRIMINAL   LAW  151 

Section  3 
THE  ORIGIN   OF  PUNISHMENT  i 

The  following  discussion  of  the  origin  of  punishment  is  under- 
taken with  a  view  of  obtaining  some  Hght  on  a  difficult  subject 
by  means  of  the  genetic  method  of  approach.  Our  institutions 
are  so  complex  and  our  tendency  to  idealize  the  existent  is  so 
inveterate  that  we  are  driven  from  one  theory  of  punishment  to 
another  in  the  effort  to  justify  what  may,  perhaps,  have  no  real 
justification. 

It  is  believed  that  a  clear  statement  of  the  origin  of  punishment 
will  throw  some  light  on  the  nature  of  the  punishing  attitude.   .   .   , 

Punishment  is  nowhere  regarded  as  a  specific  instinct.  It  is 
not  a  part  of  the  "original  nature  of  man."  Its  manifestations 
grow  out  of  the  instinct  of  pugnacity  and  its  accompaniment,  the 
emotion  of  anger.  But  even  these  instinctive  reactions  are  not 
themselves  simple  and  direct,  but  are,  in  their  turn,  dependent 
on  the  thwarting  of  other  instincts  and  impulses.  Fighting  and 
anger  are  social  in  their  nature,  requiring  for  their  arousal,  the 
presence  of  another  animal  of  the  same  or  related  species  which 
enters  into  some  sort  of  competition  or  opposition  and  attempts 
to  check  the  carrying  out  of  any  one  of  the  stronger  impulses.^ 
Hunger,  thirst,  the  desire  for  the  possession  of  any  object,  or  the 
sex  instinct,  can,  most  obviously,  be  the  occasion  of  the  arousal 
of  the  fighting  reaction  if  a  sufficiently  serious  check  is  encoun- 
tered. 

But  the  fighting  reaction  is  not  punishment.  There  is  a  popular 
use  of  the  word  in  which  one  prize-fighter  is  said  to  receive  "pun- 
ishment" from  the  other,  and  the  "natural  punishments"  are 
referred  to  by  Herbert  Spencer,  but  for  such  uses  of  the  term  there 
is  only  a  metaphorical  justification.  Neither  combat  nor  ca- 
lamity is  sufficiently  social  in  character  to  deserve  the  designation 
of  punishment. 

The  common  statement  is  that  punishment  is  derived  from  this 
feeling  of  anger  and  reaction  of  fighting  in  a  direct  fashion.  ]Mac- 
Dougall,^  for  example,  follows  Laing  in  deriving  the  whole  puni- 
tive situation  from  the  "primal  law"  which  is  thought  of  as  aris- 
ing out  of  a  situation  within  a  small  tribe  of  kinsmen  in  which 

1  [By  Ellsworth  Faris.  Reprinted  by  permission,  from  the  "  Interna- 
tionalJournal  of  Ethics,"  Vol.  XXV,  No.  1  (October,  1914).] 

2  MacDougall:  "Social  Psychology,  p.  59. 
^  "Social  Psychology,"  p.  282. 


152  L-WV   AND   THE   STATE  [Part  I. 

the  patriarch,  who  wished  to  have  control  of  the  females  of  the 
group,  drove  off  the  younger  males  of  the  tribe  as  they  grew  up 
and  forced  those  who  remained  to  submit  to  his  direction  and  con- 
trol. The  result  of  disregarding  these  directions  wa§,  in  every 
case,  punishment  by  the  patriarch,  who  might  go  to  any  length 
until  submission  was  reached.  In  short,  punishment  is  held 
to  follow  directly  upon  the  opposition,  by  any  one,  to  the  opera- 
tions of  the  sex  instinct. 

The  same  general  notion  appears  in  Pollock  and  Maitland,^ 
in  which  the  original  situation  is  described  as  one  in  which  each 
member  of  the  group  was  his  own  avenger,  and  the  position  de- 
fended, that  punishment  follows  directly  upon  the  opposition  of 
any  member  of  the  group  to  the  serious  purposes  and  plans  of 
another.  Naturally,  the  place  for  the  origin  of  the  institution  of 
punishment  will,  accordingly,  be  found  in  the  tribe.  An  eye  for 
an  eye  and  a  tooth  for  a  tooth  is  held  to  be  the  natural  and  normal 
way  in  which  a  member  of  the  group  answers  the  action  of  an- 
other in  opposing  his  acts. 

The  analogy  which  suggested  this  theory  is,  as  will  be  readily 
seen,  the  phenomena  of  struggle  for  leadership  that  occurs  occa- 
sionally among  gregarious  animals.  Rival  candidates  for  the 
leadership  of  a  herd  of  elephants  have  been  observed  to  fight  des- 
perately, and  the  defeated  one  w^anders  off  to  lead  a  life  of  com- 
parative solitude  as  a  "rogue."  But  it  is  not  difficult  to  see  that 
such  an  effort  to  banish  one  member  of  the  group  is  a  very  different 
sort  of  undertaking  from  the  normal  punitive  situation.  In  fact, 
there  is  very  little  resemblance  between  a  duel  to  the  death  and 
any  normal  procedure  of  punishment.  In  punishment  there  is 
an  endeavor  to  be  fair  and  just  to  which  the  old  account  does  not 
do  justice.  There  is,  even  in  extreme  punishments,  a  mental 
measurement  of  the  oft'ence  with  the  penalty  and  some  rough  equa- 
tion results.  But  in  the  "primal  law"  situation,  there  is  only  the 
deadly  struggle  between  infuriated  and  excited  rivals. 


There  is  abundant  reason  for  questioning  whether  any  one 
inside  the  primitive  group  was  ever  punished,  at  least  by  those 
within  his  own  tribe.  In  an  instinctive  way  the  members  of  the 
^roup  are  bound  together  and  in  the  most  homogeneous  groups 
ley  do  not  punish  each  other.     Present-day  people  of  some 

1  ''History  of  the  English  Law." 


Chap.  VI,  §  3.]  EVOLUTION    OF   CRIMIXAL   L-\W  153 

iinpivljjyprl  ^i-.ri'hoi^  f^nTintjvm^^        tlipir     r-hiklreil.       The     writer, 

during  a  residence  of  several  years  among  the  Bantus  of  the  upper 
Congo  river,  in  which  time  the  people  were  under  constant  obser- 
vation, failed  to  observe  a  single  case  of  the  punishment  of  a 
child.  This  is  not  a  deliberate  or  reflective  process,  but  rather 
an  instinctive  and  uncritical  one.  The  child  in  a  small  community 
that  is  homogeneous  and  in  a  situation  where  outside  influences 
do  not  penetrate,  will  find  himself  fitting  in  to  the  social  situation 
where  he  grows  up  and  is  without  the  stimulus  to  commit  acts  of 
an  anti-social  character. 

And  when,  by  any  chance,  such  an  act  is  committed,  it  is  highly 
improbable  that  it  will  arouse  any  resentment  whatever;  in  the 
event  that  it  does,  there  is  no  remedy,  and  the  tribe  simply  does 
nothing  save  where  the  offence  is  so  serious  as  to  break  all  bounds. 
The  situation  is  analogous  to  that  in  which  one  breaks  or  damages 
his  own  property  by  accident ;  it  is  regrettable,  but  there  is  no 
remedy  save  an  imprecation.  It  is  impossible  for  some  people 
to  thrust  a  knife  into  their  own  flesh  for,  in  some  way,  the  weapon 
refuses  to  enter.  The  primitive  tribe  is  a  unit  in  just  as  real  a 
sense.  Every  member  is  to  be  credited  with  the  good  deeds  of 
the  whole  and  to  be  blamed  to  the  faults  of  any  one.  Expulsion 
from  the  tribe  in  extreme  cases  might  take  place. 

The  Congo  State  government  in  the  old  days  was  never  at  a 
loss  in  the  effort  to  apprehend  criminals,  for  while  the  direct  pur- 
suit of  a  native  in  the  forest  would  be  like  trying  to  overtake  an 
antelope,  such  a  chase  is  quite  unnecessary.  The  tribe  is  a  unit 
to  such  an  extent  that  it  is  only  necessary  to  send  to  the  village 
for  the  chief,  whose  dignity  will  not  permit  him  to  flee  in  any  ordi- 
nary emergency,  and  to  cause  the  arrest  and  detention  of  this 
chief,  if  necessary,  after  which  the  man  who  is  wanted  always 
comes  in  voluntarily  and  surrenders.  The  only  alternative  to 
doing  so  would  be  to  leave  the  country  entirely ;  for  existence 
would  be  unbearable  with  the  head  of  the  tribe  in  bondage  on 
account  of  the  offending  member's  failure  to  give  himself  up. 

The  point  in  this  connection  is  that  physical  force  is  not  the 
means  of  securing  this  supreme  degree  of  sociality  which  will  lead 
a  man  to  give  himself  up  to  a  fate  that  is  desperate  in  the  extreme. 
The  earlier  theories  on  this  point  are  probably  erroneous.  The 
t\T)ical  group  control  did  not  depend  on  force.  The  fact  that  the 
military  leader  of  a  war-like  people  was  often,  perhaps  usually, 
a  man  of  great  strength,  has  led  to  the  totally  unwarranted  infer- 
ence that  the  rule  was  to  the  one  who  was  physically  the  strongest. 


154  LAW  AND   THE   STATE  [Part  I. 

The  savage  is  very  ready  to  admire  physical  strength,  but  the 
leadership  of  one  who  is  physically  strong  will  not  depend  on  this 
fact  entirely  or  chiefly.  He  who  rules  must  do  so  on  account  of 
some  measure  of  wisdom  in  ruling  and  on  account  of  the  support 
he  has  from  the  loyalty  of  the  rest  of  the  group.  Achilles  is  the 
greatest  warrior  among  the  besiegers,  but  the  leadership  lies  not 
with  him  who  sulks  in  his  tent  or  who  is  indifferent  to  the  death 
of  his  own  people  in  unequal  strife.  Those  who  have  assigned  the 
dominant  part  in  earlj-  group  control  to  force,  physically  under- 
stood, have  failed  to  understand  that  the  sneer  and  scorn  of  those 
within  our  own  group  are  infinitely  more  powerful  forces. 

An  incident  personally  observed  on  the  l^pper  Congo  river 
illustrates  quite  adequately  the  part  played  by  public  opinion  in 
group  control.  A  gigantic  young  warrior,  under  the  influence  of 
foreign  and  alien  ideas,  which  were  beginning  to  appear  in  the 
community  following  the  European  occupation,  violated  some 
minor  point  in  the  native  system  of  taboos  and  was  quite  unre- 
pentant when  attention  was  called  to  it.  The  matter  came  to  the 
attention  of  the  oldest  woman  of  the  tribe  who  set  out  at  once  in 
indignation  to  find  him.  He  hurried  off  to  his  hut,  but  she  fol- 
lowed him  to  the  very  door,  uttering  all  the  while  a  stream  of 
indignant  protest  to  which  the  man  vainly  attempted  to  respond, 
but  without  opportunity  of  interrupting  the  unbroken  course  of 
her  invective.  He  went  into  his  hut  and  she  crouched  at  the 
door;  he  retreated  into  the  inner  room,  but  she  only  raised  her 
voice.  The  end  of  the  unequal  contest  was  reached  when  he  came 
to  the  door,  hesitated  a  moment,  and  then  ran  off  into  the  forest, 
leaving  the  field  to  the  victor.  But  the  victor  was  a  woman  nearly 
a  hundred  years  old,  gray-haired,  toothless,  shrunken  and  lean,  so 
frail  that  a  blow  from  the  fist  of  the  warrior  would  have  crushed 
her  skull.  She  was  the  incarnation  of  public  opinion  and  there 
was  more  power  in  her  voice  than  in  his  muscle.  Nor  would  it  be 
just  to  say  that  it  was  his  fear  of  the  consequences  which  restrained 
him  from  resorting  to  force  to  rid  himself  of  the  troublesome  adver- 
sary. The  fact  is  that  the  force  of  the  expressed  common  will  is 
so  strong  that  it  does  not  occur  to  the  individual  to  contest  it. 
Obedience  is  unreflective  and  almost  instinctive.  For  just  as  the 
parental  instinct  urges  the  mother  to  care  for  her  child,  so  the 
child's  instinct  impels  him  to  respond  to  the  mother.  And  there 
is  no  need  to  explain  why  the  child  obeys  the  mother,  the  phenom- 
enon requiring  explanation  being  the  failure  on  the  part  of  the  child 
to  respond,  when  this  does  occur. 


Chap.  VI,  §  3.]  EVOLUTION  OF  CRIMINAL  LAW  155 

It  seems  clear  to  the  writer  that  the  explanation  of  the  tension 
and  friction  in  modern  groups,  including  family  groups,  is  most 
easily  found  in  the  complexity  of  the  groups  in  which  modern  chil- 
dren grow  up.  An  analogy  to  the  primitive  simplicity  of  conduct 
is  to  be  found  in  the  absence  of  errors  in  the  speech  of  primitive 
children.  If  a  language  is  pure  and  has  no  foreign  idioms  and  if 
the  children  are  not  in  the  company  of  those  who  speak  other 
languages  or  dialects,  then  it  is  probable  that  they  will  make  no 
errors  in  grammar.  My  own  observations  confirm  this  conclu- 
sion. During  my  residence  among  the  Congo  tribes  no  child  was 
ever  heard  by  me  to  make  a  mistake  in  grammar.  The  influences 
are  all  homogeneous,  the  stimuli  are  all  consistent,  and  there  is 
no  occasion  for  an  erroneous  reaction  in  the  matter  of  the  vocal 
gesture  called  language.  The  language  is  almost  perfect  in  its 
regularity.  The  real  phenomenon  that  demands  explanation  is 
that  a  mistake  should  be  made  at  all,  for  the  normal  method  of 
response  will  be  to  adopt  the  conventional  words  if  these  are  re- 
ceived from  a  consistent  source. 

It  is  confidently  believed  that  a  careful  report  of  the  facts  and 
conditions  among  present-day  savages  would  establish  the  non- 
existence of  the  punishment  of  children  among  many  of  them.^ 
V.  Stef ansson  says  •:  "  We  count  it  as  one  of  the  chief  triumphs  of 
the  four-year  expedition  of  the  American  jMuseum  of  Natural 
History  to  the  Eskimo  that  we  discovered  why  it  is  that  children 
are  not  punished ;  for  such  immaterial  things  is  the  money  of 
scientific  institutions  expended!"-  He  then  gives  the  two  pre- 
vious explanations  that  have  been  assigned,  namely,  that  the 
children  are  so  good  that  they  do  not  need  it,  and  secondly,  that 
the  Eskimos  are  so  fond  of  their  children  that  they  cannot  bear 
to  punish  them.  Both  of  these  explanations  are  rejected  in  favor 
of  the  theory  that  the  belief  of  the  natives  that  every  child  is  the 
reincarnation  of  the  spirit  of  an  honored  ancestor  is  the  real 
explanation  of  the  forbearance  of  the  parents  under  circumstances 
which  the  white  man  often  found  very  trying.  Whether  this 
explanation  points  out  the  real  cause  of  the  phenomenon  or  whether 
it  was  a  theoretical  formulation  which  grew  up  to  account  for  the 
practice  and  to  justify  it,  is  not  important  for  this  discussion. 
The  main  thing  to  observe  is  that  there  is  no  punishment  of  chil- 
dren among  these  people.  With  the  coming  of  the  white  man, 
the  group  will  be  more  and  more  subject  to  outside  influences  and 

1  [See  "The  Point  Barrow  Eskimo,"  Vol.  I,  p.  248.] 

2  V.  Stef  ansson,  "My  Life  with  the  Eskimo,"  p.  395. 


156  Ll.'VW  and  the   state  [Part  I. 

there  will  be  increasing  opportunities  for  tension ;  but  during  the 
ages  when  they  were  living  their  own  life,  there  was  no  thought  of 
punishing  the  children. 

Stefansson  also  deals  at  length  with  the  subject  of  the  immense 
power  of  public  opinion  in  the  Eskimo  society.  Resort  to  force 
is  so  rare  as  to  be  almost  negligible.  They  are  a  unit,  rule  is  not 
by  force,  though  there  is  always  a  leader.  The  authority  of  the 
leader  depends,  however,  not  on  his  strength,  but  on  the  extent  of 
his  influence  with  the  larger  group.  ^ 

Absence  of  punishment  is  also  the  characteristic  of  the  Japanese 
system  of  governing  children.  President  Sato  of  Sapporo  College 
in  a  conversation  with  the  writer,  says  that  the  Japanese  do  not 
punish  their  children  even  yet,  although  the  foreign  influences  are 
very  pronounced  at  the  present  time  in  Japan.  But  for  a  long  time, 
the  system  was  homogeneous  and  unified  and  the  momentum  of  it 
endures  till  the  present.  It  is  true  that  President  Sato  considers 
that  the  Japanese  are  too  indulgent  with  their  children  and  that 
they  should  exercise  more  careful  control  over  them,  but  the  fact 
of  the  absence  of  a  system  of  physical  punishments  for  children 
is  highly  significant. 

The  solidarity  of  the  truly  primitive  group  in  this  respect  can, 
therefore,  hardly  be  overstated.  There  is  no  remedy  for  an  in- 
fraction of  custom  by  a  member  of  a  group.  No  physical  force  is 
used  or  can  be  used.  The  whole  of  the  remedy  is  vocal  disap- 
proval, reproach,  and  scorn.  But  for  reasons  that  will  later 
appear  in  this  discussion,  it  is  contended  that  scorn  and  ridicule 
are  the  most  powerful  weapons  that  are  available  in  the  service  of 
conformity.^ 

This  much  is,  therefore,  clear  from  the  discussion  so  far.  Pun- 
ishment could  not  have  arisen  within  the  early  group  owing  to  the 
absolutely  social  character  of  their  early  organization  and  the  ab- 
sence of  physical  force  from  their  methods  of  dealing  with  each 
other.  It  is  recognized  that  offences  might  occur  and  did  some- 
times occur  which  would  be  so  serious  as  to  dissolve  the  bonds 
entirely,  but  as  will  be  seen,  such  a  situation  was  met  by  a  mode 
of  reaction  that  is  not  properly  called  punishment. 

How,  then,  did  punishment  arise?  If  it  did  not  begin  inside 
the  group  in  some  sort  of  formal  infliction  of  penalty  or  violence 

1  Op.  cit.,  p.  365. 

2  The  Roman  Assembly  of  the  Tribes  eould  not  inflict  death,  only 
a  fine,  for  the  life  of  a  Roman  was  sacred  inside  the  walls.  (Maine, 
"Ancient  Law":  375.)  But  the  military  court  could  inflict  the  death 
penally. 


Chap.  VI,  §  3.]  EVOLUTION   OF   CRIMINAL   LAW  157 

of  force,  did  it  originate  in  the  reactions  against  the  enemies  of 
the  tribe  ?     This  question  will  now  be  considered. 

II 

The  really  primitive  group,  we  have  seen,  was  probably  bound 
together  by  ties  of  an  instinctive  nature  which  made  it  impossible 
to  proceed  in  any  way  against  one  of  the  number  for  an  offence 
that  should  work  injury  to  the  offender.  The  opposing  theory 
finds  the  origin  of  punishment  in  the  wars  with  the  enemies  of 
the  tribes.  \Yestermarck  thinks  that  the  instinct  of  resentment, 
in  most  cases  "  sympathethic  resentment,"  but  always  some  strong 
emotional  state  of  mind,  is  the  key  to  the  understanding  of  the 
punishing  reactions.  Hobhouse  finds  a  cognitive  basis  for  the 
origin  of  punishment  in  the  concepts  that  are  formed  when 
the  evil  effect  of  the  oft'ence  is  observed.^  Steinmetz  traces  it  to 
the  expansion  of  personality  that  follows  the  retaliation  against 
an  affront. 

But  it  seems  quite  unnecessary  to  go  beyond  the  simple,  in- 
herited reaction  of  all  gregarious  animals  of  the  carnivorous  type, 
all  females  with  young,  and  even  insects  of  the  social  kind,  as  bees 
and  wasps.  There  is  a  natural,  inherited  reaction,  of  defence 
against  the  attack  of  a  stranger  or  an  enemy.  The  savage  fights 
anyone  from  the  outside  who  has  attacked  his  child  or  his  brother 
or  his  father  or  any  of  his  kindred  or  clan,  and  does  so  just  as  a 
hive  of  bees  or  a  nest  of  hornets  responds  to  a  disturbance  of  a 
hostile  nature.  The  reaction  is  not  due  to  reflection,  does  not 
arise  out  of  concepts  of  justice  or  right  or  propert}',  and  is  not  due 
to  any  antecedent  feeling.  The  beginning  of  the  whole  process 
is  this  reaction  of  a  protective  character  absolutely  essential  to 
the  preservation  of  the  group,  which  takes  into  account  only  the 
dangerous  character  of  the  enemy  and  the  need  of  securing  his 
annihilation. 

The  fixed  character  of  the  primitive  group  is  one  of  its  most 
striking  characteristics.  In  general,  it  is  almost  true  that  the 
only  way  to  become  a  member  of  the  group  is  to  arrange  to  be  born 
into  it.  There  is,  to  be  sure,  a  natural  tendency  toward  the 
enlargement  of  the  social  group,  but  for  the  primitive  man,  e^•en 
the  nature  peoples  of  the  present  day,  it  is  often  true  that  the  whole 
world  is  divided  into  just  two  classes,  namely :    kin  who  cannot 

^  [See  the  next  preceding  Section  of  this  Chapter  for  the  views  of 
Hobhouse.] 


158  LAW   AND   THE   STATE  [Part  I. 

become  enemies,  and  enemies  who  can  never  become  kin.  The 
former  are  ne^'e^  Hable  to  punishment  for  reasons  shown,  and  the 
latter  are  equally  exempt  from  punishment  because  they  are  the 
object  of  attack  in  war. 

The  attack  on  an  enemy  or  a  stranger  who  offends  is  often  made 
when  the  dictates  of  prudence  or  self-interest  would  make  an- 
other course  of  action  desirable,  but  the  tribe  is  without  any  other 
alternative.  Just  as  a  rattlesnake  exhausts  his  venom  in  futile 
strikes  and  is  captured  with  impunity,  so  many  a  native  tribe  would 
have  been  able  to  maintain  itself  and  get  ahead,  if  it  had  been  able 
to  take  a  cool  and  rational  attitude  toward  attacks,  but  this  is  not 
possible.     The  attack  is  made  because  there  is  nothing  else  to  do. 

Just  what  punishment  is  will  presently  appear,  but  it  is  evident 
that  an  attack  which  ceases  only  with  annihilation  of  the  enemy, 
which  is  without  any  relation  to  the  nature  or  gravity  of  the  offence 
committed,  and  which  is  directed  towards  those  who  are  thought 
of  in  the  most  abstract  way  as  enemies,  is  not  yet  the  sort  of 
reaction  that  we  call  punishment.  It  may  be  called  a  war,  a 
feud,  a  vendetta,  or  a  foray,  but  the  disregard  of  consequences, 
the  lack  of  measure  or  restraint,  the  wholly  impersonal  relation 
that  is  assumed,  marks  the  phenomenon  off  from  true  punishment. 

The  literature  of  feuds  and  the  vicarious  infliction  of  suffering 
on  the  innocent  members  of  the  group  is  very  complete,  but  the 
following  personally  observed  circumstance  will  bring  out  the  facts 
that  it  is  desired  to  emphasize  in  this  connection.  A  native  woman 
of  the  Upper  Congo  secured  the  remission  of  the  payment  of  dowry 
and  returned  in  a  perfectly  regular  and  legal  manner  to  her  father, 
but  passed  with  unseemly  haste  to  the  home  of  the  co-respondent. 
The  deserted  husband,  in  a  fit  of  jealousy,  came  from  his  distant 
village  with  a  party,  and  proceeded  in  the  darkness  to  fire  the 
hut  in  which  the  couple  was  sleeping,  but,  as  it  was  afterwards 
explained,  included  some  near-by  huts  because  the  huts  of  the 
enemy  were  not  very  well  built.  The  next  morning  saw  a  counter 
foray  into  the  villages  of  the  house-burners,  but  this  attack  was 
directed  against  a  remote  portion  of  the  enemy's  village  in  order 
that  they  might  be  taken  by  surprise  as  the  news  of  the  affair  had 
not  spread.  Accordingly,  an  approach  was  made  and  a  volley 
fired  at  close  range,  killing  a  man  and  a  woman  who  did  not  know 
that  there  was  any  trouble  between  the  two  communities.  After 
this,  slaughter  went  on  merrily  for  several  months. 

Now  it  is  significant  for  this  discussion  to  note  that  the  group 
has  no  censure  for  those  who  are  the  occasion  for  trouble  of  this 


Chap.  VI,  §  3.]  EVOLUTION   OF   CRIMINAL   LAW  159 

kind.  The  woman  whose  action  caused  the  death  of  several  of 
her  tribe  is  not  reproached,  even  by  those  who  are  the  heaviest 
losers  in  the  fighting.  The  actions  of  the  quarrelsome  members 
of  the  tribe,  in  so  far  as  they  affect  outsiders,  are  accepted  unques- 
tionably and  the  whole  tribe  joins  in  the  natural,  normal,  and 
often  joyously  exciting  reaction  called  out  by  the  instinct  of 
pugnacity.  Nor  is  there  any  blame  for  the  enemy.  He  is  con- 
ceived as  doing  his  part.  He  is  not  supposed  to  take  into  account 
the  interest  of  a  group  other  than  his  own  ;  he  is  thought  of  in  the 
most  abstract  fashion  as  a  target  and  source  of  danger,  game  and 
hunter  in  one,  and  with  nothing  even  resembling  a  fellow-feeling. 

There  was  a  little  Congo  lad  who  owned  a  chicken  which  one 
day  appeared  with  only  one  leg  because  the  boy  felt  obliged  to 
practice  economy  by  eating  one  leg  and  letting  the  rest  of  the  fowl 
wait !  This  killing  on  the  installment  plan  is  hardly  to  be  thought 
of  as  cruelty,  but  is  due  to  the  fact  that  the  fowl  is  viewed  from 
the  point  of  view  of  food  alone.  The  lad  would  as  soon  have 
thought  of  showing  mercy  to  a  potato  or  a  mango,  as  to  a  chicken ; 
for  merc\"  and  consideration  belong  to  the  members  of  your  own 
family  and  are  unthinkable  in  any  other  situation.  The  cannibal 
tribes,  which  are  not  the  lowest  but  represent  the  highest  develop- 
ment among  the  peoples  of  the  Congo  valley,  often  stick  the  liv- 
ing victim  full  of  bamboo  skewers  to  preempt  portions  of  the  meat 
before  the  slaughter ! 

A  social  attitude  toward  a  member  of  another  group  is,  therefore, 
unthinkable.  A  snake,  a  leopard,  a  slaughtered  sheep,  or  a  crushed 
worm  is  not  more  abstractly  treated.  It  is  felt  that  an  attitude 
of  this  sort  cannot  by  any  stretch  of  meaning  be  taken  to  include 
punishment. 

The  conclusion  is,  therefore,  that  there  is  no  punishment  of  any 
one  in  a  thoroughly  primitive  society.  The  whole  universe  is 
divided  into  two  classes  for  the  theoretically  primitive  savage, 
and  these  are  the  members  of  his  own  group  whom  he  does  not 
ever  think  of  striking  or  punishing  in  any  way,  and  the  rest  of  the 
world  who  are  to  be  watched  carefully  at  all  times  but  who  are 
to  be  destroyed  if  they  are  found  in  an  attitude  of  attack. 

A  thoroughly  analogous  situation  is  found  in  the  attitude  of 
civilized  nations  in  their  international  relationships.  The  citi- 
zens of  a  foreign  country,  so  long  as  they  remain  on  their  own  terri- 
tory, are  not  subject  to  punishment  by  any  other  nation  whose 
citizens  may  have  suffered  injury.  If  an  expedition  is  made  across 
the  border  and  damage  is  done  the  goods  and  persons  of  another 


160  LAW   AND   THE   STATE  [Part  I. 

nation,  there  is  no  punishment  by  the  nation  that  receives  the 
injury.  Any  attempt  at  redress  by  a  foreign  nation  inside  our 
territory  is  war.  There  are  only  two  courses  open  to  an  offended 
people  in  such  a  case.  They  can  send  an  attacking  force  across 
the  border  to  avenge  the  wrong,  but  this  is  not  punishment,  it 
is  war.  'The  only  other  course  open  to  the  injured  government 
is  to  appeal  in  a  friendly  way  for  the  government  of  the  offenders 
to  take  cognizance  of  the  offence  and  do  justice.  But  clearly  here 
the  injured  nation  is  not  punishing  anyone.  They  may  appeal  to 
another  to  punish,  but  this  appeal  is  a  friendly  and  social  act. 
Punishment  must,  therefore,  be  administered  by  the  group  to 
which  the  oft'ender  belongs.  But  we  have  seen  that  when  the 
group  is  homogeneous,  it  is  impossible  for  the  category  of  punish- 
ment to  have  any  place.  There  are  groups  organised  within 
civilized  society  which  are  so  thoroughly  social  that  there  is  no 
thought  of  punishment  within  the  circle,  as  for  example,  a  college 
faculty  or  a  social  club. 

Ill 

For  a  situation  which  would  make  the  attitude  of  formal  pun- 
ishment possible,  we  must  have  a  society  that  has  grown  so  com- 
plex that  there  are  varying  degrees  of  relationship  and  of  fellow- 
feeling.  This  is,  to  be  sure,  the  natural  result  of  a  prosperous 
community  for,  as  populations  multiply  and  migrations  are  ren- 
dered necessary  by  part  of  the  company  in  order  to  find  more 
room,  it  is  inevitable  that  some  distant  tribes  should  also  be 
distant  kin  and  the  reaction  of  enmity  would  tend  to  become 
modified.  Indignation  would  be  present,  but  it  would  be  tempered 
by  other  feelings,  in  case  an  oft'ence  should  be  committed.  The 
presence  of  slavery  as  an  institution  is  also  one  of  the  early  mani- . 
festations  of  complexity.  Exogamous  marriages  also  imply  alli- 
ances with  otherwise  hostile  tribes  and  these  alliances  are  often 
of  the  most  serious  and  binding  nature.  Also  there  are  numerous 
temporary  alliances  for  barter  and  for  protection. 

In  such  a  complex  situation  it  would  he  a  rare  case  in  which  an 
offender  would  not  have  some  friends  within  the  very  group  that 
is  concerned.  Should  two  slaves,  for  example,  have  a  serious 
quarrel,  there  might  be  nothing  in  the  way  of  a  battle  to  the  death 
if  they  were  of  different  tribes.  But  the  owner  of  the  two  would 
naturally  wish  to  save  his  property.  In  case  of  a  federation  of 
villages,  the  leaders  would  naturally  be  in  favor  of  an  amicable 
settlement  of  feuds  between  constituent  members  of  the  larger 


Chap.  VI,  §  3.]  EVOLUTION    OF   CRI.AIIXAL   LAW  161 

organization.  There  will  be  those  in  such  a  complex  group  who 
would  wish  to  see  the  offender  destroyed,  that  is,  they  would  take 
the  part  of  an  enemy.  There  would  also  be  those  who  would 
wish  to  have  him  escape  entirely  and  who  would,  therefore,  defend 
his  cause.  And  there  is  necessary  in  any  real  punitive  situation 
an  impartial  umpire  who  has  interests  on  both  sides. 

Here,  then,  is  the  solution  to  the  problem  of  the  origin  of  pun- 
ishment. So  long  as  there  are  just  two  groups  in  the  social  world 
of  the  savage,  no  punishment  could  take  place,  but  when  there 
are  three  or  more  groups  in  his  world,  the  attitude  of  formal 
punishment  becomes  a  natural  one.  There  is  the  group  to  which 
the  offender  belongs,  the  group  which  he  has  attacked,  and  a  third 
which  is  relativeh'  neutral  and  has  interests  in  both. 

Our  institutions  of  punitive  justice  exhibit  this  phenomenon 
quite  accurately.  The  criminal  is  the  expression  of  a  group  and 
is  normally  quite  loyal  to  the  group  ideals  and  the  code  of  his 
clan.  This  group  is  represented  before  the  bar  by  counsel,  ap- 
pointed, if  necessary,  by  the  state  itself,  and  the  counsel  for  the 
defence  is  interested  in  making  such  a  showing  in  the  trial  of  the 
cause  that  the  rights  of  the  defendant  will  be  fully  protected. 

There  is  also  the  group  which  the  prisoner  has  attacked,  repre- 
sented by  the  prosecuting  attorney  whose  sole  task  it  is  to  paint 
the  offence  in  the  blackest  colors,  or,  in  other  words,  to  represent 
his  enemies  and  to  destroy  him,  if  possible.  The  fact  that  he  is 
said  in  our  legal  procedure  to  represent  the  "people"  should  not 
blind  us  to  the  fact  that  there  is  also  a  third  group  necessary  in  the 
situation,  represented  by  the  judge  and  the  jury.  These  stand 
for  the  great  body  of  those  who  are  not  directly  concerned  and 
who  are,  in  reality,  attempting  to  arrange  the  conflicting  claims. 
The  jury  is  supposed  to  have  no  interest  in  the  case  and  preferably 
to  have  no  knowledge  of  the  matter,  to  be,  therefore,  wholly  dis- 
interested and  of  another  social  group  entirely. 

According  to  this  discussion,  punishment  is  a  practice  that  has 
arisen  out  of  group  activity  and  owes  none  of  its  origin  to  private 
vengeance  or  the  rule  of  force  within  the  group.  Punishment  is 
the  expression  of  the  clashing  of  groups;  with  a  "buffer-group" 
to  lessen  the  shock.  It  is  a  phenomenon  of  social  psychology  and 
can  only  be  approached  intelligently  from  the  social  point  of  view. 


Chapter  VII 
THE    FORMS    OF   LAW^ 

The  most  celebrated  system  of  jurisprudence  known  to  the 
world  begins,  as  it  ends,  with  a  Code.  From  the  commencement 
to  the  close  of  its  history,  the  expositors  of  Roman  Law  consist- 
ently employed  language  which  implied  that  the  body  of  their 
system  rested  on  the  Twelve  Decemviral  Tables,  ana  therefore 
on  a  basis  of  written  law.  Except  in  one  particular,  no  institu- 
tions anterior  to  the  Twelve  Tables  were  recognised  at  Rome. 
The  theoretical  descent  of  Roman  jurisprudence  from  a  code,  the 
theoretical  ascription  of  English  law  to  immemorial  unwritten 
tradition,  were  the  chief  reasons  why  the  development  of  their 
system  differed  from  the  development  of  ours.  Neither  theory 
corresponded  exactly  with  the  facts,  but  each  produced  conse- 
quences of  the  utmost  importance. 

I  need  hardly  say  that  the  publication  of  the  Twelve  Tables 
is  not  the  earliest  point  at  which  we  can  take  up  the  history  of 
law.  The  ancient  Roman  code  belongs  to  a  class  of  which  almost 
every  civilised  nation  in  the  world  can  show  a  sample,  and  which, 
so  far  as  the  Roman  and  Hellenic  worlds  were  concerned,  were 
largely  diffused  over  them  at  epochs  not  widely  distant  from  one 
another.  They  appeared  under  exceedingly  similar  circumstances, 
and  were  produced,  to  our  knowledge,  by  very  similar  causes. 
Unquestionably,  many  jural  phenomena  lie  behind  these  codes 
and  preceded  them  in  point  of  time.  Not  a  few  documentary 
records  exist  which  profess  to  give  us  information  concerning  the 
early  phenomena  of  law ;  but,  until  philology  has  effected  a  com- 
plete analysis  of  the  Sanskrit  literature,  our  best  sources  of  knowl- 
edge are  undoubtedly  the  Greek  Homeric  poems,  considered  of 
course  not  as  a  history  of  actual  occurrences,  but  as  a  description, 
not  wholly  idealised,  of  a  state  of  society  known  to  the  writer. 
However  the  fancy  of  the  poet  may  have  exaggerated  certain 

1  [By  Sir  Henry  S.  Maine.  Reprinted  from  "Ancient  Law,"  bj'  per- 
mission of  Henry  Holt  and  Company,  New  York.] 

162 


Chap.  VII.]  THE   FORMS   OF   LAW  1G3 

features  of  the  heroic  age,  the  prowess  of  warriors  and  the  potency 
of  gods,  there  is  no  reason  to  beheve  that  it  has  tampered  with 
moral  or  metaphysical  conceptions  which  were  not  yet  the  sub- 
jects of  conscious  observation ;  and  in  this  respect  the  Homeric 
literature  is  far  more  trustworthy  than  those  relatively  later 
documents  which  pretend  to  give  an  account  of  times  similarly 
early,  but  which  were  compiled  under  philosophical  or  theological 
influences. 

If  by  any  means  we  can  determine  the  early  forms  of  jural 
conceptions,  they  wall  be  invaluable  to  us.  These  rudimentary 
ideas  are  to  the  jurist  what  the  primary  crusts  of  the  earth 
are  to  the  geologist.  They  contain,  potentially,  all  the  forms 
in  which  law  has  subsequently  exliibited  itself.  The  haste 
or  the  prejudice  which  has  generally  refused  them  all  but  the 
most  superficial  examination,  must  bear  the  blame  of  the  un- 
satisfactory condition  in  which  we  find  the  science  of  jurispru- 
dence. The  inquiries  of  the  jurist  are  in  truth  prosecuted  much  as 
inquiry  in  physics  and  physiology  was  prosecuted  before  observa- 
tion had  taken  the  place  of  assumption.  Theories,  plausible  and 
comprehensive,  but  absolutely  unverified,  such  as  the  Law  of 
Nature  or  the  Social  Compact,  enjoy  a  universal  preference  over 
sober  research  into  the  primitive  history  of  society  and  law ;  and 
they  obscure  the  truth  not  only  by  diverting  attention  from  the 
only  quarter  in  which  it  can  be  found,  but  by  that  most  real  and 
most  important  influence  which,  when  once  entertained  and  be- 
lieved in,  they  are  enabled  to  exercise  on  the  later  stages  of  juris- 
prudence. 

The  earliest  notions  connected  with  the  conception,  now  so 
fully  developed,  of  a  law  or  rule  of  life,  are  those  contained  in  the 
Homeric  words  "Themis"  and  "Themistes."  "Themis,"  it  is 
well  known,  appears  in  the  later  Greek  pantheon  as  the  Goddess 
of  Justice,  but  this  is  a  modern  and  much  developed  idea,  and  it 
is  in  a  very  different  sense  that  Themis  is  described  in  the  Iliad 
as  the  assessor  of  Zeus.  It  is  now  clearly  seen  by  all  trustworthy 
observers  of  the  primitive  condition  of  mankind  that,  in  the  in- 
fancy of  the  race,  men  could  only  account  for  sustained  or  periodi- 
cally recurring  action  by  supposing  a  personal  agent.  Thus,  the 
wind  blowing  was  a  person  and  of  course  a  divine  person  ;  the  sun 
rising,  culminating,  and  setting  was  a  person  and  a  divine  person ; 
the  earth  yielding  her  increase  was  a  person  and  divine.  As, 
then,  in  the  physical  world,  so  in  the  moral.  When  a  king  de- 
cided a  dispute  by  a  sentence,  the  judgment  was  assumed  to  be 


164  LAW    AND   THE   STATE  [Part  I. 

the  result  of  direct  inspiration.  The  divine  agent,  suggesting 
judicial  awards  to  kings  or  to  gods,  the  greatest  of  kings,  was 
Themis.  The  peculiarity  of  the  conception  is  brought  out  by 
the  use  of  the  plural.  Tliemistes,  Themises,  the  plural  of  Themis, 
are  the  awards  themselves,  divinely  dictated  to  the  judge.  Kings 
are  spoken  of  as  if  they  had  a  store  of  "Themistes"  ready  to  hand 
for  use ;  but  it  must  be  distinctly  understood  that  they  are  not 
laws,  but  judgments,  or,  to  take  the  exact  Teutonic  equivalent, 
" dooms."  "  Zeus,  or  the  human  king  on  earth,"  says  IVIr.  Grote,  in 
his  "  History  of  Greece,"  "  is  not  a  law-maker,  but  a  judge."  He  is 
provided  with  Themistes,  but,  consistently  with  the  belief  in  their 
emanation  from  above,  they  cannot  be  supposed  to  be  connected 
by  any  thread  of  principle ;  they  are  separate,  isolated  judgments. 

Even  in  the  Homeric  poems  we  can  see  that  these  ideas  are 
transient.  Parities  of  circumstance  were  probably  commoner 
in  the  simple  mechanism  of  ancient  society  than  they  are  now,  and 
in  the  succession  of  similar  cases  awards  are  likely  to  follow  and 
resemble  each  other.  Here  we  have  the  germ  or  rudiment  of  a 
custom,  a  conception  posterior  to  that  of  Themistes  or  judgments. 
However  strongl}^  we,  with  our  modern  associations,  may  be 
inclined  to  lay  down  a  j)riori  that  the  notion  of  a  Custom  must 
precede  that  of  a  judicial  sentence,  and  that  a  judgment  must 
affirm  a  custom  or  punish  its  breach,  it  seems  quite  certain  that 
the  historical  order  of  the  ideas  is  that  in  which  I  have  placed  them. 
The  Homeric  word  for  a  custom  in  the  embryo  is  sometimes 
"Themis"  in  the  singular  —  more  often  "Dike,"  the  meaning  of 
which  visibly  fluctuates  between  a  "judgment"  and  a  "custom" 
or  "usage."  No'^09,  a  Law,  so  great  and  famous  a  term  in  the 
political  vocabulary  of  the  later  Greek  society,  does  not  occur  in 
Homer. 

This  notion  of  a  divine  agency,  suggesting  the  Themistes,  and 
itself  impersonated  in  Themis,  must  be  kept  apart  from  other 
primitive  beliefs  with  which  a  superficial  inquirer  might  confound 
it.  The  conception  of  the  Deity  dictating  an  entire  code  or  body 
of  law,  as  in  the  case  of  the  Hindoo  laws  of  ]\Ianu,  seems  to  belong 
to  a  range  of  ideas  more  recent  and  more  advanced.  "Themis" 
and  "Themistes"  are  much  less  remotely  linked  with  that  per- 
suasion which  clung  so  long  and  so  tenaciously  to  the  human  mind, 
of  a  divine  influence  underlying  and  supporting  every  relation  of 
life,  every  social  institution.  In  early  law,  and  amid  the  rudi- 
ments of  political  thought,  symptoms  of  this  belief  meet  us  on  all 
sides.     A  supernatural  presidency  is  supposed  to  consecrate  and 


Chap.  VII.]  THE   FORMS   OF   LAW  165 

keep  together  all  the  cardinal  institutions  of  those  times,  the 
State,  the  Race,  and  the  Family.  ]Men,  grouped  together  in  the 
different  relations  which  those  institutions  imply,  are  bound  to 
celebrate  periodically  common  rites  and  to  offer  common  sacrifices ; 
and  every  now  and  then  the  same  duty  is  e\en  more  significantly 
recognised  in  the  purifications  and  expiations  which  they  per- 
form, and  which  appear  intended  to  deprecate  punishment  for 
involuntary  or  neglectful  disrespect.  Everybody  acquainted 
with  ordinary  classical  literature  will  remember  the  sacra  gentilicia 
which  exercised  so  important  an  influence  on  the  early  Roman 
law  of  adoption  and  of  wills.  And  to  this  hour  the  Hindoo  Cus- 
tomary Law,  in  which  some  of  the  most  curious  features  of  primi- 
tive society  are  stereotyped,  makes  almost  all  the  rights  of  persons 
and  all  the  rules  of  succession  hinge  on  the  due  solemnisation  of 
fixed  ceremonies  at  the  dead  man's  funeral,  that  is,  at  every  point 
where  a  breach  occurs  in  the  continuity  of  the  family. 

Before  we  quit  this  stage  of  jurisprudence,  a  caution  may  be 
usefully  given  to  the  English  student.  Bentham,  in  his  "Frag- 
ment on  Government,"  and  Austin,  in  his  "Province  of  Juris- 
prudence Determined,"  resolve  every  law  into  a  command  of  the 
lawgiver,  an  obligation  imposed  thereby  on  the  citizen,  and  a  sanc- 
tion threatened  in  the  event  of  disobedience;  and  it  is  further 
predicated  of  the  command,  which  is  the  first  element  in  a  law,  that 
it  must  prescribe,  not  a  single  act,  but  a  series  or  number  of  acts  of 
the  same  class  or  kind.  The  results  of  this  separation  of  ingredi- 
ents tally  exactly  with  the  facts  of  mature  jurisprudence ;  and, 
by  a  little  straining  of  language,  they  may  be  made  to  correspond 
in  form  with  all  law,  of  all  kinds,  at  all  epochs.  It  is  not,  how- 
ever, asserted  that  the  notion  of  law  entertained  by  the  generality 
is  even  now  quite  in  conformity  with  this  dissection ;  and  it  is 
curious  that,  the  farther  we  penetrate  into  the  primitive  history 
of  thought,  the  farther  we  find  ourselves  from  a  conception  of  law 
which  at  all  resembles  a  compound  of  the  elements  which  Bentham 
determined.  It  is  certain  that,  in  the  infancy  of  mankind,  no 
sort  of  legislature,  nor  even  a  distinct  author  of  law,  is  contem- 
plated or  conceived  of.  Law  has  scarcely  reached  the  footing 
of  custom ;  it  is  rather  a  habit.  It  is,  to  use  a  French  plirase, 
"in  the  air."  The  only  autlioritative  statement  of  right  and 
wrong  is  a  judicial  sentence  after  the  facts,  not  one  presupposing 
a  law  which  has  been  violated,  but  one  which  is  breathed  for  the 
first  time  by  a  higher  power  into  the  judge's  mind  at  the  moment 
of  adjudication.     It  is  of  course  extremely  difficult  for  us  to  realise 


166  LAW  AND  THE   STATE  [Part  I. 

a  view  so  far  removed  from  us  in  point  both  of  time  and  of  associa- 
tion, but  it  will  become  more  credible  when  we  dwell  more  at  length 
on  the  constitution  of  ancient  society,  in  which  every  man,  living 
during  the  greater  part  of  his  life  under  the  patriarchal  despotism, 
was  practically  controlled  in  all  his  actions  by  a  regimen  not  of  law 
but  of  caprice.  I  may  add  that  an  Englishman  should  be  better 
able  than  a  foreigner  to  appreciate  the  historical  fact  that  the 
"Themistes"  preceded  any  conception  of  law,  because,  amid  the 
many  inconsistent  theories  which  prevail  concerning  the  character 
of  English  jurisprudence,  the  most  popular,  or  at  all  events  the 
one  which  most  affects  practice,  is  certainly  a  theory  which  as- 
sumes that  adjudged  cases  and  precedents  exist  antecedently  to 
rules,  principles,  and  distinctions.  The  "Themistes"  have  too, 
it  should  be  remarked,  the  characteristic  which,  in  the  view  of 
Bentham  and  Austin,  distinguishes  single  or  mere  commands  from 
laws.  A  true  law  enjoins  on  all  the  citizens  indifferently  a  number 
of  acts  similar  in  class  or  kind ;  and  this  is  exactly  the  feature  of 
a  law  which  has  most  deeply  impressed  itself  on  the  popular  mind, 
causing  the  term  "law"  to  be  applied  to  mere  uniformities,  suc- 
cessions, and  similitudes.  A  command  prescribes  only  a  single  act, 
and  it  is  to  commands,  therefore,  that  "Themistes"  are  more  akin 
than  to  laws.  They  are  simply  adjudications  on  insulated  states 
of  fact,  and  do  not  necessarily  follow  each  other  in  any  orderly 
sequence. 

The  literature  of  the  heroic  age  discloses  to  us  law  in  the  germ 
under  the  "Themistes"  and  a  little  more  developed  in  the  concep- 
tion of  "  Dike."  The  next  stage  which  we  reach  in  the  history 
of  jurisprudence  is  strongly  marked  and  surrounded  by  the  ut- 
most interest.  Mr.  Grote,  in  the  second  part  and  ninth  chapter 
of  his  History,  has  fully  described  the  mode  in  which  society 
gradually  clothed  itself  with  a  different  character  from  that  de- 
lineated by  Homer.  Heroic  kingship  depended  partly  on  divinely 
given  prerogative,  and  partly  on  the  possession  of  super- 
eminent  strength,  courage,  and  wisdom.  Gradually,  as  the  im- 
pression of  the  monarch's  sacredness  became  weakened,  and 
feeble  members  occurred  in  the  series  of  hereditary  kings,  the 
royal  power  decayed,  and  at  last  gave  way  to  the  domin- 
ion of  aristocracies.  If  language  so  precise  can  be  used  of  the 
revolution,  we  might  say  that  the  office  of  the  king  was  usurped 
by  that  council  of  chiefs  which  Homer  repeatedly  alludes  to  and 
depicts.  At  all  events  from  an  epoch  of  kingly  rule  we  come 
everywhere  in  Europe  to  an  era  of  oligarchies;    and  even  where 


Chap.  VII.]  THE   FORMS  OF   LAW  167 

the  name  of  the  monarchical  functions  does  not  absolutely  disap- 
pear, the  authority  of  the  king  is  reduced  to  a  mere  shadow.  He 
becomes  a  mere  hereditary  general,  as  in  Lacedsemon,  a  mere 
functionary,  as  the  King  Archon  at  Athens,  or  a  mere  formal 
hierophant,  like  the  Rex  Sacrificulus  at  Rome.  In  Greece,  Italy, 
and  Asia  Minor,  the  dominant  orders  seem  to  have  universally 
consisted  of  a  number  of  families  united  by  an  assumed  relation- 
ship in  blood,  and,  though  they  all  appear  at  first  to  have  laid 
claim  to  a  quasi-sacred  character,  their  strength  does  not  seem  to 
have  resided  in  their  pretended  sanctity.  Unless  they  were  pre- 
maturely overthrown  by  the  popular  party,  they  all  ultimately  ap- 
proached very  closely  to  what  we  should  now  understand  by  a 
political  aristocracy.  The  changes  which  society  underwent  in 
the  communities  of  the  further  Asia  occurred  of  course  at  periods 
long  anterior  in  point  of  time  to  these  revolutions  of  the  Italian 
and  Hellenic  worlds ;  but  their  relative  place  in  civilisation  ap- 
pears to  have  been  the  same,  and  they  seem  to  have  been  exceed- 
ingly similar  in  general  character.  There  is  some  evidence  that 
the  races  which  were  subsequently  united  under  the  Persian  mon- 
archy, and  those  which  peopled  the  peninsula  of  India,  had  all 
their  heroic  age  and  their  era  of  aristocracies ;  but  a  military  and 
a  religious  oligarchy  appear  to  have  grown  up  separately,  nor  was 
the  authority  of  the  king  generally  superseded.  Contrary,  too,  to 
the  course  of  events  in  the  West,  the  religious  element  in  the  East 
tended  to  get  the  better  of  the  military  and  political.  Military 
and  civil  aristocracies  disappear,  annihilated  or  crushed  into  in- 
significance between  the  kings  and  the  sacerdotal  order ;  and  the 
ultimate  result  at  which  we  arrive  is,  a  monarch  enjoying  great 
power,  but  circumscribed  by  the  privileges  of  a  caste  of  priests. 
With  these  differences,  however,  that  in  the  East  aristocracies 
became  religious,  in  the  West  civil  or  political,  the  proposition 
that  a  historical  era  of  aristocracies  succeeded  a  historical  era  of 
heroic  kings  may  be  considered  as  true,  if  not  of  all  mankind,  at 
all  events  of  all  branches  of  the  Indo-European  family  of  nations. 
The  important  point  for  the  jurist  is  that  these  aristocracies 
were  universally  the  depositaries  and  administrators  of  law.  They 
seem  to  have  succeeded  to  the  prerogatives  of  the  king,  with  the 
important  difference,  however,  that  they  do  not  appear  to  have 
pretended  to  direct  inspiration  for  each  sentence.  The  connection 
of  ideas  which  caused  the  judgments  of  the  patriarchal  chieftain 
to  be  attributed  to  superhuman  dictation  still  shows  itself  here 
and  there  in  the  claim  of  a  divine  origin  for  the  entire  body  of 


168  LAW   AND   THE   STATE  [Paht  I. 

rules,  or  for  certain  parts  of  it,  but  the  progress  of  thought  no 
longer  permits  the  solution  of  particular  disputes  to  be  explained 
by  supposing  an  extra-human  interposition.  What  the  juristical 
oligarchy  now  claims  is  to  monopolise  the  knowledge  of  the  laws, 
to  have  the  exclusive  possession  of  the  principles  by  which  quarrels 
are  decided.  We  have  in  fact  arrived  at  the  epoch  of  Customary 
Law.  Customs  or  Observances  now  exist  as  a  substantive  aggre- 
gate, and  are  assumed  to  be  precisely  known  to  the  aristocratic 
order  or  caste.  Our  authorities  leave  us  no  doubt  that  the  trust 
lodged  with  the  oligarchy  was  sometimes  abused,  but  it  certainly 
ought  not  to  be  regarded  as  a  mere  usurpation  or  engine  of  tyranny. 
Before  the  invention  of  writing,  and  during  the  infancy  of  the  art, 
an  aristocracy  invested  with  judicial  privileges  formed  the  only 
expedient  by  which  accurate  preservation  of  the  customs  of  the 
race  or  tribe  could  be  at  all  approximated  to.  Their  genuineness 
was,  so  far  as  possible,  insured  by  confiding  them  to  the  recollec- 
tion f)f  a  limited  portion  of  the  community. 

The  epoch  of  Customary  Law,  and  of  its  custody  by  a  privileged 
order,  is  a  very  remarkable  one.  The  condition  of  jurisprudence 
which  it  implies  has  left  traces  which  may  still  be  detected  in  legal 
and  popular  phraseology.  The  law,  thus  known  exclusively  to  a 
privileged  minority,  whether  a  caste,  an  aristocracy,  a  priestly 
tribe,  or  a  sacerdotal  college,  is  true  unwritten  law.  Except  this, 
pthere  is  no  such  thing  as  unwritten  law  in  the  world.  English 
case-law  is  sometimes  "spoken  of  as  unwritten,  and  there  are  some 
English  theorists  who  assure  us  that  if  a  code  of  English  juris- 
prudence were  prepared  we  should  be  turning  unwritten  law  into 
written  —  a  conversion,  as  they  insist,  if  not  of  doubtful  policy, 
at  all  events  of  the  greatest  seriousness.  Xow,  it  is  quite  true  that 
there  was  once  a  period  at  which  the  English  common  law  might 
reasonably  have  been  termed  unwritten.  The  elder  English 
judges  did  really  pretend  to  knowledge  of  rules,  principles,  and 
distinctions  which  were  not  entirely  revealed  to  the  bar  and  to  the 
lay-public.  Wliether  all  the  law  which  they  claimed  to  monopo- 
lise was  really  unwritten,  is  exceedingly  questionable ;  but  at  all 
events,  on  the  assumption  that  there  was  once  a  large  mass  of 
civil  and  criminal  rules  known  exclusively  to  the  judges,  it  presently 
ceased  to  be  unwritten  law.  As  soon  as  the  Courts  at  AYest- 
minster  Hall  began  to  base  their  judgments  on  cases  recorded, 
whether  in  the  year-books  or  elsewhere,  the  law  which  they  ad- 
ministered became  written  law.  At  the  present  moment  a  rule 
of  English  law  has  first  to  be  disentangled  from  the  recorded 


Chap.  VII.]  THE   FORMS  OF  LAW  169 

facts  of  adjudged  printed  precedents,  then  thrown  into  a  form  of 
words  varying  with  the  taste,  precision,  and  knowledge  of  the  par- 
ticular judge,  and  then  applied  to  the  circumstances  of  the  case 
for  adjudication.  But  at  no  stage  of  this  process  has  it  any  char- 
acteristic which  distinguishes  it  from  written  law.  It  is  written 
case-law,  and  only  different  from  code-law  because  it  is  written 
in  a  different  way. 

From  the  period  of  Customary  Law  we  come  to  another  sharply 
defined  epoch  in  the  history  of  jurisprudence.  We  arrive  at  the 
era  of  Codes,  those  ancient  codes  of  which  the  Twelve  Tables  of 
Rome  were  the  most  famous  specimen.  In  Greece,  in  Italy,  on 
the  Hellenised  sea-board  of  Western  Asia,  these  codes  all  made 
their  appearance  at  periods  much  the  same  everywhere,  not,  I 
mean,  at  periods  identical  in  point  of  tune,  but  similar  in  point  of 
the  relative  progress  of  each  community.  Everywhere,  in  the 
countries  I  have  named,  laws  engraven  on  tablets  and  published 
to  the  people  take  the  place  of  usages  deposited  with  the  recollec- 
tion of  a  privileged  oligarchy.  It  must  not  for  a  moment  be  sup- 
posed that  the  refined  considerations  now  urged  in  favour  of  what 
is  called  codification  had  any  part  or  place  in  the  change  I  have 
described.  The  ancient  codes  were  doubtless  originally  sug- 
gested by  the  discovery  and  diffusion  of  the  art  of  writing.  It  is 
true  that  the  aristocracies  seem  to  have  abused  their  monopoly 
of  legal  knowledge ;  and  at  all  events  their  exclusive  possession  of 
the  law  was  a  formidable  impediment  to  the  success  of  those  popu- 
lar movements  which  began  to  be  universal  in  the  western  world. 
But,  though  democratic  sentiment  may  have  added  to  their  popu- 
larity, the  codes  were  certainly  in  the  main  a  direct  result  of  the 
invention  of  writing.  Inscribed  tablets  were  seen  to  be  a  better 
depository  of  law,  and  a  better  security  for  its  accurate  preserva- 
tion, than  the  memory  of  a  number  of  persons  however  strength- 
ened by  habitual  exercise. 

The  Roman  code  belongs  to  the  class  of  codes  I  have  been  de- 
scribing. Their  value  did  not  consist  in  any  approach  to  symmet- 
rical classification,  or  to  terseness  and  clearness  of  expression,  but 
in  their  publicity,  and  in  the  knowledge  which  they  furnished  to 
everybody,  as  to  what  he  was  to  do,  and  what  not  to  do.  It  is, 
indeed,  true  that  the  Twelve  Tables  of  Rome  do  exhibit  some 
traces  of  systematic  arrangement,  but  this  is  probably  explained 
by  the  tradition  that  the  framers  of  that  body  of  law  called  in  the 
assistance  of  Greeks  who  enjoyed  the  later  Greek  experience  in 
the  art  of  law-making.     The  fragments  of  the  Attic  Code  of  Solon 


170  LAW  AND   THE   STATE  [Part  I. 

show,  however,  that  it  had  but  Httle  order,  and  probably  the  laws 
of  Draco  had  even  less.  Quite  enough  too  remains  of  these  collec- 
tions, both  in  the  East  and  in  the  West,  to  show  that  they  mingled 
up  religious,  civil,  and  merely  moral  ordinances,  without  any  regard 
to  differences  in  their  essential  character;  and  this  is  consistent 
with  all  we  know  of  early  thought  from  other  sources,  the  severance 
of  law  from  morality,  and  of  religion  from  law,  belonging  very 
distinctl}^  to  the  later  stages  of  mental  progress. 

But,  whatever  to  a  modern  eye  are  the  singularities  of  these 
codes,  their  importance  to  ancient  societies  was  unspeakable. 
The  question  —  and  it  was  one  which  affected  the  whole  future  of 
each  community  — was  not  so  much  whether  there  should  be  a  code 
at  all,  for  the  majority  of  ancient  societies  seem  to  have  obtained 
them  sooner  or  later,  and,  but  for  the  great  interruption  in  the 
history  of  jurisprudence  created  by  feudalism,  it  is  likely  that  all 
modern  law  would  be  distinctly  traceable  to  one  or  more  of  these 
fountain-heads.  But  the  point  on  which  turned  the  history  of 
the  race  was,  at  what  period,  at  what  stage  of  their  social  progress, 
they  should  have  their  laws  put  into  writing.  In  the  Western 
world  the  plebeian  or  popular  element  in  each  State  successfully 
assailed  the  oligarchical  monopoly,  and  a  code  was  nearly  univer- 
sally obtained  early  in  the  history  of  the  Commonwealth.  But, 
in  the  East,  as  I  have  before  mentioned,  the  ruling  aristocracies 
tended  to  become  religious  rather  than  military  or  political,  and 
gained,  therefore,  rather  than  lost  in  power;  while  in  some  in- 
stances the  physical  conformation  of  Asiatic  countries  had  the 
effect  of  making  individual  communities  larger  and  more  numerous 
than  in  the  W^est ;  and  it  is  a  known  social  law  that  the  larger  the 
space  over  which  a  particular  set  of  institutions  is  diffused,  the 
greater  is  its  tenacity  and  vitality.  From  whatever  cause,  the 
codes  obtained  by  Eastern  societies  were  obtained,  relatively, 
much  later  than  by  Western,  and  wore  a  very  different  character. 
The  religious  oligarchies  of  Asia,  either  for  their  own  guidance,  or 
for  the  relief  of  their  memory,  or  for  the  instruction  of  their  dis- 
ciples, seem  in  all  cases  to  have  ultimately  embodied  their  legal 
learning  in  a  code  ;  but  the  opportunity  of  increasing  and  consoli- 
dating their  influence  was  probably  too  tempting  to  be  resisted. 
Their  complete  monopoly  of  legal  knowledge  appears  to  have 
enabled  them  to  put  off  on  the  world  collections,  not  so  much  of  the 
rules  actually  observed  as  of  the  rules  which  the  priestly  order 
considered  proper  to  be  observed.  The  Hindoo  Code^  called  the 
Laws  of  Manu,  which  is  certainly  a  Brahmin  compilation,  un- 


Chap.  VII.]  THE   FORMS  OF   LAW  171 

doubtediy  enshrines  many  genuine  observances  of  the  Hindoo  race, 
but  the  opinion  of  the  best  contemporary  orientaHsts  is,  that  it 
does  not,  as  a  whole,  represent  a  set  of  rules  ever  actually  adminis- 
tered in  Hindostan.  It  is,  in  great  part,  an  ideal  picture  of  that 
which,  in  the  view  of  the  Brahmins,  ought  to  be  the  law.  It  is 
consistent  with  human  nature  and  with  the  special  motives  of  their 
authors,  that  codes  like  that  of  jManu  should  pretend  to  the  highest 
antiquity  and  claim  to  have  emanated  in  their  complete  form  from 
the  Deity.  Manu,  according  to  Hindoo  mythology,  is  an  emana- 
tion from  the  supreme  God ;  but  the  compilation  which  bears  his 
name,  though  its  exact  date  is  not  easily  discovered,  is,  in  point  of 
the  relative  progress  of  Hindoo  jurisprudence,  a  recent  production. 
Among  the  chief  advantages  which  the  Twelve  Tables  and  simi- 
lar codes  conferred  on  the  societies  which  obtained  them,  was  the 
protection  which  they  afforded  against  the  frauds  of  the  privileged 
oligarchy  and  also  against  the  spontaneous  depravation  and  de- 
basement of  the  national  institutions.  The  Roman  Code  was 
merely  an  enunciation  in  words  of  the  existing  customs  of  the  Ro- 
man people.  Relatively  to  the  progress  of  the  Romans  in  civilisa- 
tion, it  was  a  remarkably  early  code,  and  it  was  published  at  a  time 
when  Roman  society  had  barely  emerged  from  that  intellectual 
condition  in  which  civil  obligation  and  religious  duty  are  inevi- 
tably confounded.  Now  a  barbarous  society  practising  a  body  of 
customs,  is  exposed  to  some  especial  dangers  which  may  be  ab- 
solutely fatal  to  its  progress  in  civilisation.  The  usages  which  a 
particular  community  is  found  to  have  adopted  in  its  infancy  and 
in  its  primitive  seats  are  generally  those  which  are  on  the  whole 
best  suited  to  promote  its  physical  and  moral  well-being ;  and,  if 
they  are  retained  in  their  integrity  until  new  social  wants  have 
taught  new  practices,  the  upward  march  of  society  is  almost  certain. 
But  unhappily  there  is  a  law  of  de^'elopment  which  ever  threatens 
to  operate  upon  unwritten  usage.  The  customs  are  of  course 
obeyed  by  multitudes  who  are  incapable  of  understanding  the 
true  ground  of  their  expediency,  and  who  are  therefore  left  in- 
evitably to  invent  superstitious  reasons  for  their  permanence.  A 
process  then  commences  which  may  be  shortly  described  by  saying 
that  usage  which  is  reasonable  generates  usage  which  is  unreason- 
able. Analogy,  the  most  valua})le  of  instruments  in  the  maturity 
of  jurisprudence,  is  the  most  dangerous  of  snares  in  its  infancy. 
Prohi})itions  and  ordinances,  originally  confined,  for  good  reasons, 
to  a  single  description  of  acts,  are  made  to  apply  to  all  acts  of  the 
same  class,  because  a  man  menaced  with  the  anger  of  the  gods  for 


172  LAW   AND   THE   STATE  [Part  I. 

doing  one  thing,  feels  a  natural  terror  in  doing  any  other  thing 
which  is  remotely  like  it.  After  one  kind  of  food  has  been  inter- 
dicted for  sanitary  reasons,  the  prohibition  is  extended  to  all  food 
resembling  it,  though  the  resemblance  occasionally  depends  on 
analogies  the  most  fanciful.  So  again,  a  wise  provision  for  insur- 
ing general  cleanliness  dictates  in  time  long  routines  of  ceremonial 
ablution ;  and  that  division  into  classes  which  at  a  particular  crisis 
of  social  history  is  necessary  for  the  maintenance  of  the  national 
existence  degenerates  into  the  most  disastrous  and  blighting  of  all 
human  institutions  —  Caste.  The  fate  of  the  Hindoo  law  is,  in 
fact,  the  measure  of  the  value  of  the  Roman  Code.  Ethnology 
shows  us  that  the  Romans  and  the  Hindoos  sprang  from  the  same 
original  stock,  and  there  is  indeed  a  striking  resemblance  between 
what  appear  to  have  been  their  original  customs.  Even  now, 
Hindoo  jurisprudence  has  a  substratum  of  forethought  and  sound 
judgment,  but  irrational  imitation  has  engrafted  in  it  an  immense 
apparatus  of  cruel  absurdities.  From  these  corruptions  the  Ro- 
mans were  protected  by  their  code.  It  was  compiled  while  usage 
was  still  wholesome,  and  a  hundred  years  afterwards  it  might  have 
been  too  late.  The  Hindoo  law  has  been  to  a  great  extent  em- 
bodied in  writing,  but,  ancient  as  in  one  sense  are  the  compendia 
which  still  exist  in  Sanskrit,  they  contain  ample  evidence  that 
they  were  drawn  up  after  the  mischief  had  been  done.  We  are 
not  of  course  entitled  to  say  that  if  the  Twelve  Tables  had  not  been 
published  the  Romans  would  have  been  condemned  to  a  civilisa- 
tion as  feeble  and  perverted  as  that  of  the  Hindoos,  but  thus  much 
at  least  is  certain,  that  ivith  their  code  they  were  exempt  from  the 
very  chance  of  so  unhappy  a  destiny. 


Chapter  VIII 
METHODS  OF   THE   LAW'S  GROWTH  ^ 

When  primitive  law  has  once  been  embodied  in  a  Code,  there  is 
an  end  to  what  may  be  called  its  spontaneous  development. 
Henceforward  the  changes  effected  in  it,  if  effected  at  all,  are 
effected  deliberately  and  from  without.  It  is  impossible  to  sup- 
pose that  the  customs  of  any  race  or  tribe  remained  unaltered 
during  the  whole  of  the  long  —  in  some  instances  the  immense  — 
interval  between  their  declaration  by  a  patriarchal  monarch 
and  their  publication  in  writing.  It  would  be  unsafe  too  to  affirm 
that  no  part  of  the  alteration  was  effected  deliberately.  But  from 
the  little  we  know  of  the  progress  of  law  during  this  period,  we  are 
justified  in  assuming  that  set  purpose  had  the  very  smallest  share 
in  producing  change.  Such  innovations  on  the  earliest  usages  as 
disclose  themselves  appear  to  have  been  dictated  by  feelings  and 
modes  of  thought  which,  under  our  present  mental  conditions,  we 
are  unable  to  comprehend.  A  new  era  begins,  however,  with  the 
Codes.  Wherever,  after  this  epoch,  we  trace  the  course  of  legal 
modification,  we  are  able  to  attribute  it  to  the  conscious  desire  of 
improvement,  or  at  all  events  of  compassing  objects  other  than 
those  which  were  aimed  at  in  the  primitive  times. 

It  may  seem  at  first  sight  that  no  general  propositions  worth 
trusting  can  be  elicited  from  the  history  of  legal  systems  subse- 
quent to  the  codes.  The  field  is  too  vast.  W^e  cannot  be  sure 
that  we  have  included  a  sufficient  number  of  phenomena  in  our 
observations,  or  that  we  accurately  understand  those  which  we 
have  observed.  But  the  undertaking  will  be  seen  to  be  more 
feasible,  if  we  consider  that  after  the  epoch  of  codes  the  distinction 
between  stationary  and  progressive  societies  begins  to  make  itself 
felt.  It  is  only  with  the  progressive  societies  that  we  are  concerned, 
and  nothing  is  more  remarkable  than  their  extreme  fewness.  In 
spite  of  overwhelming  evidence,  it  is  most  difficult  for  a  citizen  of 

'  [By  Sir  Henry  S.  ]Maine.  Reprinted  from  "Ancient  Law,"  by  per- 
mission of  Henry  Holt  and  Company,  Xew  York.] 

173 


174  LAW   AND   THE   STATE  [Part  I. 

Western  Europe  to  bring  thoroughly  home  to  himself  the  truth 
that  the  civilisation  which  surrounds  him  is  a  rare  exception  in  the 
history  of  the  world.  The  tone  of  thought  common  among  us,  all 
our  hopes,  fears,  and  speculations,  would  be  materially  affected, 
if  we  had  vividly  before  us  the  relation  of  the  progressive  races  to 
the  totality  of  human  life.  It  is  indisputable  that  much  the 
greatest  part  of  mankind  has  never  shown  a  particle  of  desire  that 
its  civil  institutions  should  be  improved  since  the  moment  when 
external  completeness  was  first  given  to  them  by  their  embodi- 
ment in  some  permanent  record.  One  set  of  usages  has  occasion- 
ally been  violently  overthrown  and  superseded  by  another;  here 
and  there  a  primitive  code,  pretending  to  a  supernatural  origin, 
has  been  greatly  extended,  and  distorted  into  the  most  surprising 
forms,  by  the  perversity  of  sacerdotal  commentators ;  but,  except 
in  a  small  section  of  the  world,  there  has  been  nothing  like  the 
gradual  amelioration  of  a  legal  system.  There  has  been  material 
civilisation,  but,  instead  of  the  civilisation  expanding  the  law,  the 
law  has  limited  the  civilisation.  The  study  of  races  in  their 
primitive  condition  affords  us  some  clue  to  the  point  at  which  the 
development  of  certain  societies  has  stopped.  We  can  see  that 
Brahminical  India  has  not  passed  beyond  a  stage  which  occurs  in 
the  history  of  all  the  families  of  mankind,  the  stage  at  which  a  rule 
of  law  is  not  yet  discriminated  from  a  rule  of  religion.  The  mem- 
bers of  such  a  society  consider  that  the  transgression  of  a  religious 
ordinance  should  be  punished  by  civil  penalties,  and  that  the  viola- 
tion of  a  civil  duty  exposes  the  delinquent  to  divine  correction. 
In  China  this  point  has  been  passed,  but  progress  seems  to  have 
been  there  arrested,  because  the  civil  laws  are  co-extensive  with  all 
the  ideas  of  which  the  race  is  capable.  The  difference  between  the 
stationary  and  progressive  societies  is,  however,  one  of  the  great 
secrets  which  inquiry  has  yet  to  penetrate.  Among  partial  ex- 
planations of  it  I  venture  to  place  the  considerations  urged  at  the 
end  of  the  last  chapter.  It  may  further  be  remarked  that  no  one 
is  likely  to  succeed  in  the  investigation  who  does  not  clearly  realise 
that  the  stationary  condition  of  the  human  race  is  the  rule,  the 
progressive  the  exception.  And  another  indispensable  condition 
of  success  is  an  accurate  knowledge  of  Roman  law  in  all  its  princi- 
pal stages.  The  Roman  jurisprudence  has  the  longest  known 
history  of  anyset  oTTiuman  institutions.  The  character  of  all  the 
changes  which  it  underwent  is  tolerably  well  ascertained.  From 
its  commencement  to  its  close,  it  was  progressively  modified  for 
the  better,  or  for  what  the  authors  of  the  modification  conceived 


Chap.  VIII.]  METHODS   OF   THE    L.\w's   GROWTH  175 

to  be  the  better,  and  the  course  of  improvement  was  continued 
through  periods  at  which  all  the  rest  of  human  thought  and  action 
materially  slackened  its  pace,  and  repeatedly  threatened  to  settle 
down  into  stagnation. 

I  confine  myself  in  what  follows  to  the  progressive  societies. 
With  respect  to  them  it  may  be  laid  down  that  spcialnecessities 
and  social  opinion  are  always  more  or  less  in  acfvance  of  X,aw. 
^We"may  come  indefinitely  near  to  the  closing  of  the  gap  between 
them,  but  it  has  a  perpetual  tendency  to  reopen.  Law  is  stable ; 
the  societies  we  are  speaking  of  are  progressive.  The  greater  or 
"Tess  happiness  of  a  people  depends  on  the  degree  of  promptitude 
with  which  the  gulf  is  narrowed. 

A  general  proposition  of  some  value  may  be  advanced  with 
respect  to  the  agencies  by  which  Law  is  brought  into  harmony  with 
society.  These  instrumentalities  seem  to  me  to  be  three  in  num- 
ber. Legal  Fictions,  Equity,  and  Legislation.  Their  historical 
order~is  that  in  which  I  have  placed  them.  Sometimes  two  of 
them  will  be  seen  operating  together,  and  there  are  legal  systems 
which  have  escaped  the  influence  of  one  or  other  of  them.  But  I 
know  of  no  instance  in  which  the  order  of  their  appearance  has 
been  changed  or  inverted.  The  early  history  of  one  of  them. 
Equity,  is  universally  obscure,  and  hence  it  may  be  thought  by 
some  that  certain  isolated  statutes,  reformatory  of  the  civil  law, 
are  older  than  any  equitable  jurisdiction.  My  own  belief  is  that 
remedial  Equity  is  everywhere  older  than  remedial  Legislation; 
but,  should  this  be  not  strictly  true,  it  would  only  be  necessary 
to  limit  the  proposition  respecting  their  order  of  sequence  to  the 
periods  at  which  they  exercised  a  sustained  and  substantial  in- 
fluence in  transforming  the  original  law. 

I  employ  the  word  "fiction"  in  a  sense  considerably  wider  than 
that  in  which  English  lawyers  are  accustomed  to  use  it,  and  with  a 
meaning  much  more  extensive  than  that  which  belonged  to  the 
Roman  "fictiones."  Fictio,  in  old  Roman  law,  is  properly  a  term 
of  pleading,  and  signifies  a  false  averment  on  the  part  of  the  plain- 
tiff' which  the  defendant  was  not  allowed  to  traverse;  such,  for 
example,  as  an  averment  that  the  plaintiff  was  a  Roman  citizen, 
when  in  truth  he  was  a  foreigner.  The  object  of  these  "fictiones" 
was,  of  course,  to  give  jurisdiction,  and  they  therefore  strongly 
resembled  the  allegations  in  the  writs  of  the  English  Queen's 
Bench  and  Exchequer,  by  which  those  courts  contrived  to  usurp 
the  jurisdiction  of  the  Common  Pleas :  —  the  allegation  that  the 
defendant  was  in  custody  of  the  king's  marshal,  or  that  the  plain- 


176  LAW   AND   THE   STATE  [Part  I. 

tiff  was  the  king's  debtor,  and  could  not  pay  his  debt  by  reason  of 
the  defendant's  default.  But  nowj^employ  the  expression  "Legal 
Fiction"  to  signify  any  assumption  which  conceals,  or  affects  tjo 
conceal,  the  fact  that  a  rule  of  law  has  undergone  alteration,  it^ 
letter  remaining  imchanged,  its  operation  being  modified.  The 
words,  therefore,  include  the  instances  of  fictions  which  I  have 
cited  from  the  English  and  Roman  law,  but  they  embrace  much 
more,  for  I  should  speak  both  of  the  English  Case-law  and  of  the 
Roman  Responsa  Prudentium  as  resting  on  fictions.  Both  these 
examples  will  be  examined  presently.  The  fact  is  in  both  cases 
that  the  law  has  been  wholly  changed  ;  the  fiction  is  that  it  remains 
\  what  it  always  was.  It  is  not  difficult  to  understand  whynctions 
in  all  their  forms  are  particularly  congenial  to  the  infancy  of 
societj\  They  satisfy  the  desire  for  improvement,  which  is  not 
quite  wanting,  at  the  same  time  that  they  do  not  offend  the 
superstitious  disrelish  for  change  which  is  always  present.  At  a 
particular  stage  of  social  progress  they  are  invahiable  expedients 
for  overcoming  the  rigidity  of  law,  and,  indeed^  without  one  of 
them,  the  Fiction  of  Adoption  which  permits  the  family  tie  to  be 
artificially  created,  it  is  difficult  to  understand  how  society  would 
ever  have  escaped  from  its  swaddling-clothes,  and  taken  its  first 
steps  towards  civilisation.  We  must,  therefore,  not  suffer  our- 
selves to  be  affected  by  the  ridicule  which  Bentham  pours  on  legal 
fictions   wherever  he  meets   them.     To   revile  them   as   merely 

I  fraudulent  is  to  betray  ignorance  of  their  peculiar  office  in  the  his- 
torical development  of  law.  But  at  the  same  time  it  would  be 
equally  foolish  to  agree  with  those  theorists  who,  discerning  that 
fictions  have  had  their  uses,  argue  that  they  ought  to  be  stereo- 
typed in  our  system.  There  are  several  Fictions  still  exercising 
powerful  influence  on  English  jurisprudence  which  could  not  be 
discarded  without  a  severe  shock  to  the  ideas,  and  considerable 
change  in  the  language,  of  English  practitioners;  but  there  can 
be  no  doubt  of  the  general  truth  that  it  is  unworthy  of  us  to  effect 
ah  admittedly  beneficial  object  by  so  rude  a  device  as  a  legal  fiction. 
I  cannot  admit  any  anomaly  to  be  innocent,  which  makes  the  law 
either  more  difficult  to  understand  or  harder  to  arrange  in  har- 
monious order.  Now,  among  other  disadvantages,  legal  fictions 
are  the  greatest  of  obstacles  to  symmetrical  classification.  The 
rule  of  law  remains  sticking  in  the  system,  but  it  is  a  mere  shell. 
It  has  been  long  ago  undermined,  and  a  new  rule  hides  itself  under 
its  cover.  Hence  there  is  at  once  a  difficulty  in  knowing  whether 
the  rule  which  is  actually  operative  should  be  classed  in  its  true 


Chap.  VIII.]  METHODS    OF   THE    L.\w's   GROWTH  _  177 

or  in  its  apparent  place,  and  minds  of  different  casts  will  differ  as 
to  the  branch  of  the  alternative  which  ought  to  be  selected.  If  the 
English  law  is  ever  to  assume  an  orderly  distribution,  it  will  be 
necessary  to  prune  away  the  legal  fictions  which,  in  spite  of  some 
recent  legislative  improvements,  are  still  abundant  in  it. 

The  next  instrumentality  by  which  the  adaptation  of  law  to 
social  wants  is  carried  on  I  call  Equity,  meaning  by  that  word  any 
body  of  rules  existing  by  the  side  of  the  original  civil  law,  founded 

~on~ distinct  principles  and  claiming  incidentally  to  supersede  the 
civil  law  in  virtue  of  a  superior  sanctity  inherent  in  those  principles. 

"T^he  Equity  whether  of  the  Roman  Prsetors  or  of  the  English 
Chancellors,  differs  from  the  Fictions  which  in  each  case  preceded 
it,  in  that  the  interference  with  law  is  open  and  avowed.  On  the 
other  hand,  it  differs  from  Legislation,  the  agent  of  legal  improve- 
ment which  comes  after  it,  in  that  its  claim  to  authority  is  grounded 
not  on  the  prerogative  of  any  external  person  or  body,  not  even 
on  that  of  the  magistrate  who  enunciates  it,  but  on  the  special 
nature  of  its  principles,  to  which  it  is  alleged  that  all  law  ought  to 
conform.  The  very  conception  of  a  set  of  principles,  invested 
with  a  higher  sacredness  than  those  of  the  original  law  and  demand- 
ing application  independently  of  the  consent  of  any  external  body, 
belongs  to  a  much  more  advanced  stage  of  thought  than  that  to 
which  legal  fictions  originally  suggested  themselves. 

Legislation,  the  enactments  of  a  legislature  which,  whether  it 
take  the  forms  of  an  autocratic  prince  or  of  a  parliamentary  as- 
sembly, is  the  assumed  organ  of  the  entire  society,  is  the  last  of  the 
ameliorating  instrumentalities.  It  differs  from  Legal  Fictions 
just  as  Equity  differs  from  them,  and  it  is  also  distinguished  from 
Equity,  as  de^Jiving  its  authority  from  an  external  body  or  person. 
Its  obligatory  force  is  independent  of  its  principles.  The  legisla- 
ture; whatever  be  the  actual  restraints  imposed  on  it  by  public 
opinion,  is  in  theory  empowered  to  impose  what  obligations  it 
pleases  on  the  members  of  the  community.  There  is  nothing  to 
prevent  its  legislating  in  the  wantonness  of  caprice.  Legislation 
may  be  dictated  by  equity,  if  that  last  word  be  used  to  indicate 
some  standard  of  right  and  wrong  to  which  its  enactments  happen 
to  be  adjusted ;  but  then  these  enactments  are  indebted  for  their 
binding  force  to  the  authority  of  the  legislature  and  not  to  that  of 
the  principles  on  which  the  legislature  acted  ;  and  thus  they  differ 
from  rules  of  Equity,  in  the  technical  sense  of  the  word,  which 
pretend  to  a  paramount  sacredness. 


PART   II 
PERSONS 

Chapter  IX 
KINSHIP 

Section  1.     The  Tribe 

Section  2.    The  Clan 
By  J.  W.  Powell 

Chapter  X 

THE    PATRIARCHAL    THEORY 
Bt  George  E.  Howard 

Chapter  XI 

TOTEMISM   AND   EXOGAMY 

Section  1.    Exogamy  as  a  Survival  of  Group  Marriage 
By  Josef  Kohler 

Section  2.     Origin  of  Exogamy 
By  Andrew  Lang 

Chapter  XII 

WOMEN   IN   PRIMITIVE    SOCIETY 
By  L.  T.  Hobhouse 

Chapter  XIII 

MARRIAGE 

Section  1.    Forms  of  Marriage 
By  Josef  Kohler 

Section  2.     Tribal  Marriage  Law 
By  J.  W.  Powell 

Section  3.     Religious  Basis  of  the  Family 
By  Fustel  de  Coulanges 

Section  4.    Marriage  in  Greece  and  Rome 
By  FtJSTEL  DE  Coulanges 


Chapter  XIV 

PATRIA   POTESTAS 

By  Henry  S.  Maine 

Chapter  XV 

WOMgN   AND   MARRIAGE    UNDER   CIVILIZATION 

By  L.  T.  Hobhouse 

Chapter  XVI 

CHILDREN   AND    THE    FAMILY 

By  Josef  Kohler 

Chapter  XVII 

ADOPTION   AND    ARTIFICIAL    RELATIONSHIP 

Section  1.     Survey  of  Artificial  Relationships 
By  Josef  Kohler 

Section  2.     Religious  Basis  of  Adoption 
By  Fustel  de  Coulanges 

Chapter  XVIII 

SLAVERY 

Section  1.     Historical  Importance  of  Slavery 
By  Josef  Kohler 

Section  2.     Theories  of  Slavery 
By  Henry  S.  Maine 

Chapter  XIX 

CAPITIS    DEMINUTIO 
By  Rudolph  Sohm 

Chapter  XX 

EXISTIMATIONIS   MINUTIO 
By  Rudolph  Sohm 


180 


Chapter  IX 
KINSHIP  1 

Section  1 

THE    TRIBE 

So  far  as  is  now  known,  tribal  society  is  everywhere  based  on 
kinship.  In  the  simplest  form  of  which  there  is  any  knowledge, 
the  tribe  consists  of  a  group  of  men  calling  one  another  brother, 
who  are  husbands  to  a  group  of  women  calling  one  another  sister. 
The  children  of  these  communal  parents  call  all  the  men  fathers, 
and  all  the  women  mothers,  and  one  another  brother  and  sister. 
In  time  these  children  become  husbands  and  wives  in  common, 
like  their  parents.  Thus  the  kinship  system  recognizes  husbands 
and  wives,  fathers  and  mothers,  sons  and  daughters,  brothers  and 
sisters,  and  grandparents  and  grandchildren.  The  only  kinship 
by  affinity  is  that  of  husband  and  wife.  The  only  collateral  kin- 
ships are  those  of  brother  and  brother,  sister  and  sister,  and 
brother  and  sister.  The  lineal  kinships  are  father  and  son, 
father  and  daughter,  mother  and  son,  mother  and  daughter,  with 
grandparents  and  grandchildren  also  recognized.  There  is  no 
recognized  father-in-law,  mother-in-law,  brother-in-law,  nor  sister- 
in-law  ;  there  is  no  uncle,  no  aunt,  no  cousin,  no  nephew,  no  niece 
recognized. 

It  will  thus  be  seen  that  all  of  the  collateral  kinships  of  uncle 
and  aunt  and  nephew  and  niece  are  included  in  the  lineal  kinship  of 
parent  and  child,  and  cousins  of  whatever  degree  are  reckoned  as 
brothers  and  sisters.  Let  any  person  be  designated  as  Ego.  Then 
all  the  men  of  the  antecedent  generation  are  his  fathers,  and  all 
the  women  his  mothers  ;  all  the  males  of  his  own  generation  are  his 
brothers,  and  all  the  females  his  sisters ;  and  all  the  males  of  the 
following  generation  are  his  sons,  and  all  the  females  his  daughters. 

'  [By  J.  W.  Powell.  Reprinted,  by  permission,  from  the  3d  Annual 
Report  of  the  American  Bureau  of  Ethnology  (The  Smithsonian 
Institution).] 

181 


182  PERSONS  [Part  II. 

Selecting  the  Ego  from  any  generation  and  reckoning  from  him  the 
antecedent  and  subsequent  generations,  the  following  consanguin- 
eal  kinship  groups  will  be  found :  Ego  will  be  one  of  a  group  of 
brothers ;  there  will  be  a  group  of  sisters,  a  group  of  fathers,  a 
group  of  mothers,  a  group  of  grandfathers,  and  a  group  of  grand- 
mothers ;  there  may  also  be  a  group  of  sons  and  a  group  of  daugh- 
ters, a  group  of  grandsons  and  a  group  of  granddaughters. 

In  the  use  of  the  terms  "  brother,"  "  sister,"  "  father,"  "  son," 
**  mother,"  "  daughter,"  "  grandfather,"  "  grandson,"  "  grand- 
mother," and  "  granddaughter"  in  this  manner,  it  must  be  clearly 
understood  that  in  every  case  the  term  applies  to  every  one  of  the 
members  of  a  group,  only  a  part  of  whom  bear  the  relation  which 
that  term  implies  among  ci^'ilized  peoples,  who  classify  by  degrees 
of  consanguinity. 

Thus,  the  father-group  embraces  the  father  and  all  his  own 
brothers ;  but  as  the  father  calls  all  his  male  cousins  brothers,  it 
also  includes  the  father's  male  cousins.  The  father-group  there- 
fore includes  the  father  and  all  of  those  persons  whom  the  father 
calls  by  the  name  of  "  brother." 

Ego  calls  all  the  sons  of  his  father  and  mother  brothers ;  he 
calls  also  all  his  father's  brothers'  sons,  and  his  father's  sisters' 
sons,  and  his  mother's  brothers'  sons,  and  his  mother's  sisters' 
sons,  brothers.  And  if  there  be  male  cousins  of  the  second,  third, 
fourth,  fifth,  or  any  other  degree,  he  calls  them  all  alike  brothers. 
The  brother-group,  therefore,  may  be  very  large.  In  like  manner 
the  mother-group,  the  sister-group,  the  son-group,  and  the  daugh- 
ter-group may  be  correspondingly  large.  The  grandfather-group 
and  the  grandmother-group  include  all  collateral  kindred  of  that 
generation;  and  in  like  manner  the  grandson-group  and  the 
granddaughter-group  include  all  the  collateral  kindred  of  their 
generation.  Under  this  system  all  kinships  may  be  thrown  into  a 
very  few  groups,  and  each  one  of  these  groups  is  designated  by  the 
kinship  term  properly  belonging  to  the  person  in  the  group  nearest 
of  kin  to  Ego. 

The  essential  principle  of  this  method  of  reckoning  kinship  is 
that  collateral  kinship  is  not  recognized.  All, of  the  kindred  are 
included  in  the  lineal  groups ;  and  in  every  generation  a  group  of 
brothers  is  constituted,  including  all  of  the  males  of  that  genera- 
tion, anda  group  of  sisters  is  constituted,  including  all  of  the  females 
of  that  generation. 

That  such  a  kinship  body  has  ever  existed  is  a  matter  of  infer- 
ence ;  its  discovery  as  an  objective  fact  has  not  been  made.     How- 


Chap.  IX,  §  1.]  KINSHIP  183 

ever,  it  is  predicated  upon  very  strong  inferential  evidence.  In 
the  forms  of  society  actually  found  among  the  lower  tribes  of 
mankind,  institutions  are  discovered  that  are  believed  to  be 
survivals  from  such  a  form  of  tribal  organization.  And  the  philo- 
logic  evidence  is  perhaps  still  stronger;  in  fact,  the  hypothesis 
was  originally  based  solely  upon  linguistic  data,  as  languages  have 
been  found  in  which  terms  for  husband,  wife,  father,  mother,  son, 
daughter,  elder  brother,  younger  brother,  elder  sister,  and  younger 
sister  occur,  together  with  those  expressive  of  the  kinships  that 
arise  through  the  recognition  of  grandparents  and  grandchildren, 
while  terms  for  collateral  kinships  are  not  found. 

All  tribes  that  have  yet  been  carefully  studied  present  a  more 
elaborate  form  of  social  organization  than  that  above  described. 
This  more  highly  developed  structure  is  usually  exhibited,  among 
other  things,  in  a  more  elaborate  system  of  classifying  kinships. 
Additional  groups  are  constituted,  so  that  certain  collateral  kin- 
ships are  differentiated. 

In  the  brothers  and  sisters  of  parents  four  natural  kinships  are 
possible,  namely,  (a)  paternal  uncle,  called  by  the  Romans  pat- 
runs;  (b)  maternal  uncle,  called  by  the  Romans  avunculus;  (c) 
paternal  aunt,  called  by  the  Romans  amita;  and  (d)  maternal 
aunt,  called  by  the  Romans  matertera.  The  recognition  of  these 
four  groups  would  lead  to  the  recognition  of  the  correlative  cousins, 
in  four  classes,  male  and  female  in  each  class ;  and  if  terms  were 
used  distinguishing  sex,  eight  classes  of  cousins  would  arise  through 
the  four  classes  of  uncles  and  aunts.  In  this  direction  the  first 
step  in  the  differentiation  of  additional  kinships  is  made.  Let 
us  call  paternal  uncles  ixitruates,  maternal  uncles  avunculates,  pater- 
nal aunts  amitates,  and  maternal  aunts  uiaterte rates. 

Let  us  suppose  that  the  relation  of  husband  and  wife  is  not 
the  same  as  the  relation  of  brother  and  sister ;  that  is,  that  men 
do  not  marry  their  own  sisters,  but  a  brother-group  marries  a  sister- 
group  in  common.  In  this  case  fathers'  sisters  will  no  longer  be 
mothers,  but  will  constitute  a  group  of  amitates.  In  like  manner, 
mothers'  brothers  will  no  longer  be  fathers,  but  will  constitute  a 
group  of  avunculates.  The  institution  of  a  group  of  amitates 
will  necessitate  the  establishment  of  the  correlative  cousin-groups. 
Thus,  with  the  reduction  of  the  father-group  there  will  be  a  cor- 
responding reduction  of  the  brother  and  sister  groups ;  and  with 
the  reduction  of  the  mother-group  there  will  be  an  additional 
corresponding  reduction  of  the  brother  and  sister  groups ;  that  is, 
the  paternal  aunts  and  maternal  uncles  will  carry  with  them  their 


184  PERSONS  [Part  II. 

correlative  nephews  and  nieces,  and  such  nephews  and  nieces  will 
be  subtracted  from  the  brothers  and  sisters.  In  this  stage  of  kin- 
ship development  there  is  still  communal  marriage.  It  may  not 
always  be  actual,  as  gradually  restrictions  are  thrown  around  it ; 
but  if  not  actual,  it  is  always  potential.  The  form  of  kinship  now 
reached  is  not  an  inference  from  philology  and  the  survival  of 
customs,  but  is  an  observed  fact  among  some  of  the  tribes  of  the 
earth. 

The  recognition  of  patruates  (paternal  uncles)  must  next  be 
considered.  Such  a  recognition  results  in  the  establishment  of 
two  additional  cousin-groups,  as  the  sons  and  daughters  of  pat- 
ruates are  taken  out  from  the  "  brothers"  and  "  sisters"  of  Ego. 
At  this  stage  brothers  and  sisters  are  still  own  (natal)  and  collat- 
eral, but  the  collateral  brothers  and  sisters  include  only  the 
children  of  mothers'  sisters,  and  this  because  a  group  of  mater- 
terates  is  not  established. 

We  have  now  reached  that  kinship  system  which  is  perhaps 
the  most  widely  distributed  among  existing  tribes  of  mankind.  It 
will  be  well,  then,  to  describe  it  once  more,  that  it  may  be  clearly 
understood : 

The  brother-group  consists  of  the  sons  of  a  woman,  together 
with  the  sons  of  all  of  her  sisters,  own  and  collateral ;  and  the 
sister-group  is  of  like  extension.  The  son-group  is  coextensive 
with  the  brother-group  to  which  the  son  belongs;  the  daughter- 
group  is  coextensive  with  the  sister-group  to  which  the  daughter 
belongs;  the  father-group  is  coextensive  with  the  brother- 
group  to  which  the  father  belongs ;  and  the  mother-group  has 
a  like  extension.  The  patruate-group  is  coextensive  with  the 
brother-group  of  the  paternal  uncle ;  the  amitate-group  is  co- 
extensive with  the  sister-group  to  which  the  paternal  aunt  belongs ; 
the  avunculate-group  is  coextensive  with  the  brother-group  to 
which  the  maternal  uncle  belongs ;  but  there  is  no  materterate- 
group  (maternal  aunt). 

The  essential  characteristic  of  this  system  of  kinship  is  that 
the  brother-group  consists  of  own  brothers,'  together  with  the 
collateral  brothers  that  come  through  maternal  aunts ;  and  that 
the  sister-group  consists  of  own  sisters,  together  with  the  collateral 
sisters  that  come  through  maternal  aunts ;  and  it  matters  not 
whether  maternal  uncles  and  paternal  uncles  are  distinguished 
from  each  other.  They  may  or  may  not  be  thrown  into  one  group. 
The  cousins  which  arise  from  the  discrimination  of  paternal  and 
maternal  uncles  and  paternal  aunts  may  be  thrown  into  two,  four. 


Chap.  IX,  §  1.]  KINSHIP  185 

or  six  groups  ;  but  the  general  system  does  not  seem  to  be  affected 
thereby.  Where  this  system  of  kinship  prevails,  the  brother  and 
sister  groups  are  on  the  mother's  side,  the  children  belonging  to 
their  mothers  and  not  to  their  fathers,  and  descent  is  said  to  be  in 
the  female  line. 

There  is  another  system  of  tribal  organization  which  widely 
prevails.  In  this  the  mother's  sisters  are  recognized  as  mater- 
nal aunts,  and  a  materterate-group  is  constituted  of  the  mother's 
sisters,  own  and  collateral,  and  the  cousins  arising  therefrom  are 
taken  out  from  the  brother  and  sister  groups.  But  in  this  case  the 
father's  brothers,  own  and  collateral,  are  still  considered  as  fathers  ; 
there  is  no  patruate  group.  The  brother-group  is  thus  composed 
of  the  sons  of  the  father  with  the  sons  of  all  his  brothers,  own  and 
collateral.  It  is  therefore  a  large  group,  and  the  sister-group  cor- 
responds therewith.  When  the  brother  and  sister  groups  arise 
through  paternal  uncles,  children  belong  to  their  fathers,  and 
descent  is  said  to  be  in  the  male  line. 

From  the  above  statements  it  will  be  seen  that  one  of  the  funda- 
mental principles  used  in  classifying  kinships  in  tribal  society  is 
that  which  arises  from  the  discrimination  of  generations.  The 
simple  communal  form  first  described  is  classed  in  groups  of  kindred 
on  characteristics  of  generations  and  sex,  and  in  the  various  sys- 
tems which  develop  from  it  the  characteristic  of  distinct  genera- 
tions still  remains,  although  collateral  descents  are  to  some  extent 
differentiated  from  lineal  descent. 

It  would  seem  that  generation-groups  extending  collaterally 
many  degrees  would  speedily  become  confused,  as  a  series  of 
generations  might  be  much  shorter  in  one  line  than  in  another. 
If  three  sisters  have  each  three  daughters,  the  eldest  daughter 
of  the  eldest  sister  may  be  many  years  older  than  the  youngest 
daughter  of  the  youngest  sister,  and  in  several  generations  the 
discrepancy  of  ages  might  become  very  great.  W^e  do  not  know 
in  all  cases  how  this  confusion  is  avoided,  but  in  some  tribes  a 
method  of  adjustment  has  been  discovered  which  is  very  simple. 

It  must  always  be  remembered  that  relative  age  is  expressed 
in  the  kinship  terms  of  this  stage  of  culture.  Thus  there  are 
two  terms  for  brother,  one  signifying  elder  brother,  the  other 
younger  brother.  There  are  also  two  terms  for  sister  —  elder 
sister  and  younger  sister.  In  the  Shoshonian  cases  to  which 
reference  is  here  made,  if  a  male  child  is  born  who  is  a  "  group  " 
brother  of  Ego's  father,  but  younger  than  Ego,  Ego  does  not 
call  him  father,  but  younger  brother.     In  one  case  discovered, 


186  PERSONS  [Part  II. 

Ego  calls  the  "group"  father  born  after  himself,  son.  Among 
the  same  tribes,  in  the  case  of  uncles,  the  uncle  born  after  the 
nephew  is  called  nephew. 

A  case  like  the  following  has  been  discovered :  There  are  two 
brothers  born  of  the  same  mother ;  the  elder  brother  calls  a  par- 
ticular person  son,  because  that  particular  person  was  born  after 
himself;  but  the  younger  calls  him  father,  because  he  was  born 
prior  to  himself.  This  method  of  adjusting  generations  has  been 
discovered  in  but  few  cases,  viz.,  among  the  Shoshonian  tribes, 
and  perhaps  among  the  Wintuns.  In  this  stage  language  fre- 
quently lends  its  aid  to  adjustment.  This  is  the  case  when  the 
kinship  name  is  a  reciprocal  term  with  a  termination  signifying 
elder  or  younger.  Thus,  in  a  Shoshonian  tribe  ain  is  such  a  re- 
ciprocal term  used  by  uncle  and  nephew ;  the  termination  sen  is 
diminutive.  The  nephew  calls  his  uncle  ain,  the  uncle  calls  the 
nephew  ainsen  or  aitsen,  little  uncle ;  and  in  this  case,  if  the  uncle 
was  born  after  the  nephew,  the  nephew  would  be  called  ain  and 
the  uncle  aitsen.  A  reciprocal  relationship  term,  i.e.,  one  designat- 
ing a  relatioi\ship  and  used  by  both  parties,  is  common. 

In  some  of  the  cases  adjustments  are  known  to  have  been  made 
by  convention,  and  individuals  have  been  taken  from  one  genera- 
tion and  placed  in  another,  by  agreement  of  the  elder  women  of  the 
clan. 

Unadjusted  kinships  are  frequently  discovered,  so  that  the 
kinships  claimed  seem  strange  to  civilized  persons  accustomed 
only  to  the  kinships  recognized  in  the  higher  states  of  culture. 
Thus  it  has  frequently  been  found  that  an  adult  has  claimed  a 
child  for  his  grandmother  and  a  babe  for  his  father.  The  subject 
is  one  of  interest,  and  deserves  careful  study. 

The  method  of  classifying  and  naming  by  kinship  terms  the 
six  groups  of  cousins,  their  children  and  their  children's  chil- 
dren, has  been  neglected,  in  order  that  the  general  subject  might 
not  be  buried  in  details,  and  from  the  further  consideration  that 
the  principles  of  tribal  organization ,  can  be  set  forth  without 
the  aid  of  such  additional  facts. 

In  the  above  statements  the  fundamental  principles  of  tribal 
kinship  have  been  explained,  and  they  may  be  restated  as  follows  : 

I.  —  A  body  of  kindred  constituting  a  distinct  body-politic 
is  divided  into  groups,  the  males  into  groups  of  brothers  and 
the  females  into  groups  of  sisters,  on  distinctions  of  generations, 
regardless  of  degrees  of  consanguinity  ;  and  the  kinship  terms  used 
express  relative  age.     In  civilized  society  kinships  are  classified  on 


Chap.  IX,  §  2.]  KINSHIP  187 

distinctions  of  sex,  distinctions  of  generations,  and  distinctions 
arising  from  degrees  of  consanguinity. 

II.  —  When  descent  is  in  the  female  hne,  the  brother-group 
consists  of  natal  brothers,  together  with  all  the  materterate  male 
cousins  of  whatever  degree.  Thus  mother's  sisters'  sons  and 
mother's  mother's  sisters'  daughters'  sons,  &c.,  are  included  in  a 
group  with  natal  brothers.  In  like  manner  the  sister-group  is 
composed  of  natal  sisters,  together  with  all  materterate  female 
cousins  of  whatever  degree. 

III.  —  ^Vlien  descent  is  in  the  male  line,  the  brother-group  is 
composed  of  natal  brothers,  together  with  all  patruate  male  cousins 
of  whatever  degree,  and  the  sister-group  is  composed  of  natal 
sisters,  together  with  all  patruate  female  cousins  of  whatever 
degree. 

IV.  —  The  son  of  a  member  of  a  brother-group  calls  each  one 
of  the  group,  father ;  the  father  of  a  member  of  a  brother-group 
calls  each  one  of  the  group,  son.  Thus  a  father-group  is  coex- 
tensive with  the  brother-group  to  which  the  father  belongs.  A 
brother-group  may  also  constitute  a  father-group,  and  grand- 
father-group, a  son-group  and  a  grandson-group.  It  may  also 
be  a  patruate-group  and  an  avunculate-group.  It  may  also  be 
a  patruate  cousin-group  and  an  avunculate  cousin-group ;  and 
in  general,  every  member  of  a  brother-group  has  the  same  con- 
sanguineal  relation  to  persons  outside  of  the  group  as  that  of  every 
other  member. 

The  principles  enunciated  above  may  be  stated  in  another  way, 
namely  :  A  kinship  body  is  divided  into  brother-groups  and  sister- 
groups,  and  group  is  related  to  group  lineally  and  collaterally ; 
and  every  group  bears  a  distinct  relationship  to  every  other  group. 

It  will  thus  be  seen  that  the  brother-group  and  the  sister- 
group  constitute  the  fundamental  units  of  tribal  society. 

A  tribe  may  be  defined  as  follows :  A  tribe  is  a  congeries  of 
brother-groups  and  sister-groups,  and  every  group  recognizes  a 
distinct  correlative  consanguineal  kinship  with  every  other  group ; 
and  series  of  groups  are  related  to  series  of  groups  by  the  ties  of 
affinity,  i.e.,  marriage ;  to  explain  which  necessitates  the  considera- 
tion of  the  clan. 

Section  2 

THE  CLAN 

In  tribal  society  the  tribe,  or  body-politic,  is  divided  into 
groups  of  brothers  and  groups  of  sisters.     One  form  of  the  brother- 


188  PERSONS  [Part  II. 

group  includes  not  only  the  sons  of  one  woman,  but  also  the  sons  of 
her  sisters ;  and  not  only  the  sons  of  her  natal  sisters,  but  also  the 
sons  of  her  collateral  sisters ;  i.e.,  the  brother-group  includes  the 
natal  brothers,  together  with  all  of  the  male  cousins  of  the  first, 
second,  or  n  collateral  line,  reckoning  always  through  females. 
Sister-groups  are  constituted  in  like  manner. 

Another  form  exists  in  which  to  the  natal  brothers  are  added 
all  male  cousins  to  the  n  degree  that  come  through  paternal 
uncles,  reckoning  always  through  males.  Sister-groups  are  con- 
stituted in  like  manner. 

With  some  tribes  the  brother  and  sister  groups  arise  from  male 
descent ;  but  a  much  larger  number  of  tribes  have  these  groups 
constituted  through  female  descent.  The  two  systems  of  kinship 
are  at  the  base  of  two  distinct  systems  of  clan  organization. 

Wlien  the  brother  and  sister  groups  arise  through  female  de- 
scent, a  larger  group  is  constituted,  reckoning  kinship  through 
females  only.  The  constitution  of  this  larger  body,  a  group  of 
groups,  must  be  clearly  understood.  Every  brother-group  has 
its  correlatiAje  sister-group.  Take,  then,  a  brother-group  and 
a  sister-group  that  are  thus  correlated  and  call  them  the  Ego 
group.  The  mothers  of  the  Ego  group  constitute  another  sister- 
group  within  themselves,  and  the  brother-group  to  which  they  are 
correlated  are  the  avunculates  of  the  Ego  group.  Call  this  brother 
and  sister  group  the  first  ascendant  of  the  Ego  group.  The 
mothers  of  the  first  ascendant  group  constitute  another  sister- 
group  within  themselves,  and  the  brother-group  to  which  they  are 
correlated  are  the  avunculates  of  the  first  ascendant  group.  Thus 
a  second  ascendant  brother  and  sister  group  is  constituted.  In  the 
same  manner  third,  fourth,  and  ii'^  ascendant  brother  and  sister 
groups  may  be  constituted. 

Returning  now  to  the  Ego  group.  The  sisters  of  the  Ego  group 
have  sons  and  daughters  who  are  brothers  and  sisters  to  one  an- 
other, and  they  constitute  a  first  descendant  brother  and  sister 
group.  The  sisters  of  the  first  descendant  group  have  children 
who  are  brother  and  sister  to  one  another  and  constitute  a  second 
descendant  group.  In  the  same  manner  the  third,  fourth,  and  w 
descendant  group  may  be  constituted.  The  Ego  group,  together 
with  the  ascendant  groups  and  descendant  groups,  constitute  a 
lineal  series  of  brother  and  sister  groups,  reckoning  always  through 
females.  Such  a  body  is  here  called  a  group  of  enates,  and  kinship 
thus  reckoned  is  called  enatic  kinship.  On  the  other  hand,  if  the 
brother  and  sister  groups  come  through  paternal  uncles,  and  the 


Chap.  IX,  §  2.]  KINSHIP  189 

lineal  series  is  reckoned  exclusively  through  males,  it  is  called  a 
body  of  agnates,  and  the  kinship  is  called  agnatic  kinship. 

Whenever  enatic  or  agnatic  kinship  is  recognized,  the  tribe 
becomes  much  more  highly  composite  than  in  the  case  of  the 
communal  family.  There  are  always  several  co-ordinate  groups  of 
people  united  into  a  larger  group,  the  tribe.  For  the  present  let 
us  use  the  term  "  tribe"  for  the  name  to  distinguish  the  group  of 
the  highest  order,  and  the  term  "  clan"  to  distinguish  each  of  the 
co-ordinate  groups  of  the  second  order  into  which  the  tribe  is 
divided. 

The  first  characteristic  of  the  clan  is  thus  reached.  A  clan  is 
one  of  the  co-ordinate  groups  into  which  a  tribal  state  is  divided. 

The  tribe  itself  is  a  body  of  intermarrying  cognates ;  so  that,  in 
the  tribe,  kinship  by  consanguinity  and  affinity  is  recognized. 
Within  the  clan,  kinship  by  affinity  is  not  recognized ;  that  is, 
the  husband  and  wife  do  not  belong  to  the  same  clan,  and  kinship 
by  consanguinity  is  limited  to  kinship  traced  through  females,  or  to 
kinship  traced  through  males,  as  the  case  may  be  ;  and  in  both,  but 
a  part  of  the  cognates  are  included.  In  one  case  the  clan  is  enatic, 
and  in  the  other  it  is  agnatic.  In  the  one  case  descent  is  through 
females,  in  the  other  through  males.  An  enatic  clan  consists  of  a 
brother-group  and  a  sister-group  in  each  of  the  generations  repre- 
sented in  the  clan,  and  the  kinship  is  reckoned  only  through 
females.  An  agnatic  clan  consist  of  a  brother-group  and  a  sister- 
group  in  each  of  the  generations  represented  in  the  clan,  and  the 
kinship  is  reckoned  only  through  males. 

A  second  characteristic  of  a  clan  may  therefore  be  given  :  A  clan 
is  a  body  of  either  enatic  or  agnatic  kindred. 

When  the  clan  is  enatic  it  usually  has  a  common  worship  of  a 
tutelar  god.  This  must  be  distinguished  from  the  tribal  worship, 
which  is  more  miscellaneous,  and  based  upon  polytheism.  The 
tutelar  god,  or  totem,  is  often  an  animal ;  or  sometimes  it  may  be  a 
river,  a  mountain,  the  sun,  or  some  other  object;  in  which  case 
the  members  of  the  clan  call  themselves  the  children  of  the  animal, 
the  river,  the  mountain,  or  the  sun,  as  the  case  may  be.  When 
the  clan  is  agnatic,  the  tutelar  god  is  usually  some  ancestor  who 
has  distinguished  himsels  for  valor  or  wisdom. 

A  third  characteristic  of  a  clan  is  thus  reached  :  A  clan  is  a  body 
of  kindred  having  a  tutelar  god,  totemic  or  ancestral,  who  is  con- 
sidered to  be  the  father  of  the  clan. 

When  the  clan  is  totemic  it  usually  takes  the  name  of  its  tutelar 
god  as  its  name,  and  the  picture-writing,  or  s\Tnbol  of  the  tutelar 


190  PERSONS  [Part  II. 

god,  is  used  as  a  badge  to  distinguish  the  clan.  That  the  members 
of  a  cLan  have  descended  from  a  common  parent,  seems  at  present 
to  be  usually  a  legal  fiction.  In  tribal  society  age  is  greatly  re- 
vered, and  " elder-rule"  largely  prevails  ;  so  the  gods  are  spoken  of 
as  "  fathers,"  or  more  usually  "  grandfathers,"  or  even  "  ancient 
fathers,"  and  sometimes  simply  as  "  ancients,"  that  is,  "  the 
venerable."  But  the  tutelar  god  is  especially  the  guide  and  pro- 
tector of  the  clan,  and  is  therefore  called  "  father,"  and  it  seems 
that  in  many  cases  a  myth  is  developed,  explaining  this  fatherhood 
as  being  real.  When  the  tutelar  god  is  a  real  ancestor  (and  such 
seems  to  be  the  case  when  the  clan  is  agnatic)  the  clan  takes  the 
name  of  the  ancestor. 

A  fourth  characteristic  of  a  clan  is  therefore  reached  :  A  clan  is  a 
body  of  kindred  having  a  common  name,  the  name  of  its  tutelar 
deity. 

The  clan,  whether  enatic  or  agnatic,  is  composed  of  brothers 
and  sisters  in  each  generation ;  and  in  the  custom-law  of  this 
stage  of  culture  brothers  and  sisters  cannot  intermarry.  In 
like  manner,  when  the  clan  is  enatic,  by  the  same  custom-law  a 
mother  cannot  marry  her  son,  natal  or  fictitious ;  and  when  the 
clan  is  agnatic  a  father  cannot  marry  his  daughter,  natal  or  fictiti- 
ous. Thus  it,  is  that  marriage  within  the  enatic  or  agnatic  group 
is  incest,  and  is  usually  punished  with  death.  The  rules  for  mar- 
riage outside  of  the  clan  are  various,  and  the  subject  need  not  here 
be  entered  upon.  It  is  sufficient  to  note  that  the  group  is  exoga- 
mous.  It  will  be  seen  that  the  term  "  exogamy"  is  here  used  in  a 
sense  altogether  different  from  that  given  it  b}^  McLennan  and  the 
writers  of  his  school. 

The  fifth  characteristic  of  a  clan,  therefore,  is  reached :  A  clan 
is  a  group  of  exogamous  kindred. 

As  a  clan  is  a  brother-group  and  sister-group  in  each  generation, 
though  these  ties  are  in  small  part  real,  and  in  large  part  artificial, 
yet  they  are  considered  to  be  the  closest,  and  to  combine  the  group 
into  the  firmest  union.  The  body,  therefore,  constitutes  a  feud- 
group  to  secure  one  another's  rights  and  to  avenge  one  another's 
wrongs.  The  clan  is  held  responsible  by  the  tribe  for  the  conduct 
of  its  members.  All  controversies  arising  within  the  clan  are 
settled  by  the  clan ;  controversies  arising  between  members  of 
different  clans  are  settled  by  the  tribe.  For  personal  injury, 
especially  for  maiming  and  murdering,  every  clan  holds  every 
other  clan  responsible.  Out  of  this  arises  the  blood-feud,  and  out 
of  blood-feud  arises  outlawry  ;  for  when  a  clan  finds  that  one  of  its 


Chap.  IX,  §  2.]  KINSHIP  191 

members  has  become  so  outrageous  in  his  conduct  that  the  other 
members  no  longer  wish  to  hold  themselves  responsible  therefor, 
the  clan  formally  declares  that  the  culprit  no  longer  constitutes 
one  of  the  community.  The  offender  is  expelled  from  the  clan  and 
becomes  an  outlaw,  and  any  one  may  kill  him. 

^1  sixth  characteristic  of  a  clan  has  been  reached :  A  clan  is  a 
feud-group  of  kindred. 

In  tribal  society  great  wealth  is  not  accumulated.  The  indirect 
personal  relations  which  arise  through  property  are  of  minor  im- 
portance as  compared  with  direct  personal  relations,  which  are 
regulated  by  kinship  and  relative  age.  The  institution  of  personal 
property  is  very  slightly  developed,  and  such  property,  especially 
in  the  lower  forms  of  tribal  society,  is  destroyed  at  the  death  of  the 
individual.  It  is  a  widely-spread  law  in  savage  society  that 
personal  property  is  inherited  by  the  grave.  The  tenure  to  the 
greater  part  of  property  is  communal,  and  inheres  in  the  clan. 

A  seventh  characteristic  of  a  clan  has  therefore  been  reached : 
The  clan  is  the  chief  property-holding  group. 

It  has  already  been  mentioned  that  elder-right,  in  some  form 
or  other,  is  universally  recognized  in  tribal  society.  In  gen- 
eral, coeteris  paribus,  the  elder  has  authority  over  the  younger,  and 
in  all  tribal  languages  a  special  device  is  found  to  facilitate  this 
custom,  viz.,  individuals  must  always  address  each  other  by  kin- 
ship terms  in  which  relative  age  is  expressed ;  thus,  there  is  no 
general  term  for  "  brother,"  but  a  special  term  for  "  elder  brother," 
and  another  for  "  younger  brother."  This  elder-rule  applies  to 
the  clan,  as  the  eldest  man  of  the  clan  is  its  chief,  and  such  a  chief, 
whose  rulership  is  by  right  of  superior  age,  will  here  be  called  the 
2)resbyarch. 

An  eighth  characteristic  of  a  clan  has  therefore  been  reached: 
A  clan  is  a  presbyarchy. 

Let  these  characteristics  be  combined  into  a  definition :  A 
clan  is  one  of  the  co-ordinate  groups  into  which  a  tribe  of  cognatic 
people  is  divided,  and  is  based  upon  enation  or  agnation,  has  a 
totemic  or  ancestral  tutelar  god,  a  common  name  for  its  members, 
is  exogamous,  is  a  feud-group,  a  proprietary  group,  and  is  ruled 
by  a  presbyarch. 

There  are  many  other  characteristics  of  a  clan  that  are  found, 
now  here,  now  there.  For  example,  sometimes  a  clan  will  not 
eat  the  animal  or  some  portion  of  the  animal  whose  name  it  bears  ; 
it  will  thus  have  what  is  usually  called  a  "  taboo."  Sometimes  the 
several  clans  of  a  tribe  Mill  claim  as  their  own,  particular  hunting 


192  PERSONS  [Part  II. 

or  fishing  grounds.  Sometimes  a  clan  will  have  a  body  of  personal 
names  to  be  given  to  its  members,  which  the  clan  claims  as  its 
own.  Often  a  clan  has  a  particular  place  assigned  to  it  as  the  site 
for  its  residence  or  residences  in  the  village  group,  and  will  occupy 
the  same  relative  place  in  the  village  wherever  the  tribe  may  have 
a  permanent  or  temporary  residence.  Thus  there  are  many  rights 
and  duties  which  inhere  in  a  clan  and  which  may  be  said  to  charac- 
terize it.  But  the  eight  characteristics  included  in  the  above 
definition  are  those  most  commonly  found.  In  the  definition  of 
the  clan  thus  given,  the  tribe  has  been  assumed  to  be  of  very  simple 
structure  —  as  composed  of  a  number  of  co-ordinate  clans.  But 
this  simple  structure  is  not  universal  —  in  fact,  a  more  complex 
structure  is  more  common.  Wlienever  a  tribe  has  a  more  complex 
structure,  the  characteristics  above  enumerated  may  not  all 
inhere  in  every  one  of  a  number  of  co-ordinate  groups,  but  ma}^  be 
distributed  among  groups  of  different  orders.  It  occasionally 
happens,  also,  that  some  of  these  characteristics  are  not  found  in 
any  group.     Some  of  these  cases  must  next  be  considered. 

Let  one  of  the  most  frequent  cases  be  taken  first.  Suppose  that 
a  tribe,  becoming  very  large,  divides  in  such  a  manner  that  seg- 
ments from  every  one  of  the  clans  separate  from  the  parent  tribe 
and  organize  a  new  tribe  with  the  same  clans.  Thus  the  clans 
found  in  the  parent  tribe  are  represented  in  the  new  tribe.  Suppose 
that  this  fissiparous  generation  of  tribes  continues  until  there  are 
five,  ten,  or  twenty  tribes,  every  one  having  the  same  clans  as 
every  other.  Under  such  circumstances  the  same  clan  extends 
through  many  tribes,  and  any  one  tribe  has  in  its  body-politic  no 
more  than  a  segment  of  any  clan ;  but  every  tribe  is  composed  of 
like  segments.  Now,  such  a  uniform  division  of  tribes  is  rarely 
found.  The  division  is  usually  more  irregular,  from  the  fact  that 
the  departing  body  which  is  organized  into  a  new  tribe  usually 
takes  with  it  segments  of  only  a  part  of  the  clans ;  and  as  these 
divisions  occur  from  time  to  time,  no  two  tribes  are  likely  to  have 
representatives  of  exactly  the  same  clans,  and  it  may  sometimes 
happen  that  two  tribes  may  "be  found  in  the  same  body  of  cognate 
tribes  that  will  have  entirely  diverse  clans.  The  segmentation 
of  clans  in  this  manner  complicates  the  definition  of  a  clan.  It 
is  no  longer  one  of  the  co-ordinate  groups  of  a  tribe.  These  co- 
ordinate groups  are  but  segments  of  clans,  and  each  such  segment 
is  likely  to  become  a  distinct  feud-group  and  a  distinct  proprietarj^ 
group.  Sometimes  in  such  a  case  all  the  segments  will  yet  recog- 
nize one  presbyarch,  but  oftener  a  distinct  presbyarch  for  each 


^ 


Chap.  IX,  §  2.]  KINSHIP  193 

segment  is  developed.  Enatic  or  agnatic  distinctions,  the  common 
tutelar  god,  the  common  name  and  the  characteristic  of  exogamy 
are  more  likely  to  remain  permanent. 

This  fissiparous  generation  of  tribes  leads  to  a  complication  in 
the  definition  of  the  term  "  tribe,"  as  such  cognate  tribes  are  likely 
to  unite  into  confederacies,  with  a  council  and  a  chief  presiding 
over  the  larger  body  thus  constituted  ;  and  in  the  various  changes 
which  may  be  wrought  upon  the  different  groups  of  several  orders 
in  a  confederacy  by  many  redistributions  of  characteristics,  it 
sometimes  becomes  difficult  to  say  just  what  order  of  groups  shall 
be  called  tribes.  Confederacies  also  form  alliances,  and  though 
they  are  apt  to  leave  the  confederacies  or  tribes  of  which  they  are 
composed  independent  and  autonomous,  except  for  oftensive  or 
defensive  purposes  against  more  foreign  peoples,  they  doubtless 
sometimes  continue  and  become  more  thoroughly  cemented  by 
the  development  of  kinship  ties  and  governmental  organizations. 

Sometimes  clans  divide  into  sub-clans,  while  yet  remaining  in 
the  same  tribe.  The  nature  of  this  division  in  enatic  clans  is  not 
clearly  understood.  It  may  be  that  it  does  not  occur  normally 
but  that  the  apparent  instances  are  due  to  the  recoalescing  of  tribes. 
Be  this  as  it  may,  it  occurs  w4th  agnatic  clans.  Agnatic  clans 
may  be  ruled  by  a  presbyarch,  and  may  be  divided  into  segments, 
each  one  of  which  is  ruled  by  a  patriarch,  the  patriarchies  being 
subordinate  groups  within  a  presbyarchal  agnatic  clan.  Lnder 
these  circumstances,  however,  the  authority  of  the  presbyarch  is 
likely  to  wane,  and  the  patriarchies  are  likely  to  be  more  enduring, 
and  so  the  clan  is  divided  into  sub-clans.  Thus  it  happens  that 
the  presbyarchy  is  not  always  a  characteristic  of  a  clan. 

Again,  the  members  of  enatic  clans  do  not  always  have  a  common 
name.  This  has  been  found  true  of  most  of  the  Shoshonian  tribes 
of  North  America,  of  the  Wintuns,  and  of  other  peoples  in  the 
western  portion  of  the  United  States.  \\Tiether  a  common  name 
was  never  used,  or  whether  such  common  names  have  been  lost 
in  the  flux  of  time  is  uncertain.  A  common  name,  therefore,  is 
not  an  invariable  characteristic  of  a  clan. 

The  most  enduring  characteristics  of  a  clan,  therefore,  are  these  : 
enatic  or  agnatic  kinship,  exogamy,  and  feud-protection.  But 
even  these  may  be  distributed  among  different  groups;  so  that 
the  ideal  definition  of  a  clan  above  given  will  apply  in  all  its  parts 
to  but  few  clans  ;  yet  in  most  of  its  parts  it  will  appl>-  to  nearly  all 
clans.  But  there  are  cases  when  these  characteristics  are  so  dis- 
tributed through  the  various  groups  of  a  body-politic  that  it  will 


194  PERSONS  [Part  II. 

be  well  nigh  impossible  to  decide  which  should  be  called  the  clan. 
Under  such  circumstances  it  perhaps  will  be  best  to  apply  the 
term  "clan"  to  the  group  based  upon  enation  or  agnation,  as  the 
case  may  be,  and  perhaps  it  will  always  be  found  that  such  a  group 
is  exogamous. 

In  Australia  there  seems  to  be  another  complication.  Fison 
and  Howitt  describe  a  very  peculiar  condition  of  affairs  which 
seems  to  extend  through  many  of  the  tribes  of  that  great  island. 
Among  them,  marriage  within  a  prescribed  group  still  remains. 
Enatic  kinship,  a  tutelar  god,  and  a  common  name  still  attach  to 
the  clan,  but  clans  are  divided  into  many  segments  constituting 
the  different  tribes.  It  seems  also  that  a  limited  marriage,  or  the 
right  to  temporary  sexual  association,  is  still  communal.  It  seems 
further  that  two  or  more  systems  or  tribes  are  in  somewhat  the 
same  stage  of  institutional  culture.  These  different  systems  of 
tribes  appear  not  to  be  cognate,  or,  if  cognate,  they  are  very  re- 
motely so.  But  having  been  long  associated,  and  having  com- 
mon institutions  in  the  respects  above  named,  the  clans  in  the  differ- 
ent non-cognate  tribes  have  become  assimilated,  so  that  a  clan  with 
a  totemic  name  in  one  group  of  tribes  has  come  to  be  considered 
as  the  equivalent  of  another  clan  having  another  totemic  name  in 
another  group  not  cognate  to  the  first;  that  is,  the  clan  of  one 
group  is  supposed  to  be  equivalent  to  the  clan  of  another  group, 
and  temporary  marriage  rights  extend  across  the  lines  which  demar- 
cate non-cognate  groups. 

Some  of  the  Australian  clans  present  another  interesting  varia- 
tion. It  must  be  understood  that  a  clan  is  composed  of  a  lineal 
series  of  brother-groups,  one  for  each  generation,  together  with  a 
lineal  series  of  sister-groups,  one  for  each  generation.  In  the  case 
under  consideration  the  series  of  brother-groups  is  distinguished 
from  the  series  of  sister-groups  by  a  different  name.  Thus  the 
clan  is  divided,  the  males  from  the  females,  and  the  enatic  kindred 
are  separated  into  two  groups,  the  daughters  falling  into  the 
group  of  their  mothers,  and  the  sons  falling  into  the  group  of 
their  mothers'  brothers. 

Still  other  tribes  in  Australia  have  a  clan  system  in  which  the 
brother-group  of  one  generation  is  distinguished  from  the  brother- 
group  of  the  next  generation  by  a  different  name,  but  the  brother- 
group  of  the  third  generation  takes  the  name  of  the  brother-group 
of  the  first  generation.  The  same  change  of  names  occurs  in  the 
series  of  sister-groups.  The  grandmother  belongs  to  a  group 
having  the  same  name  as  the  granddaughter. 


Chap.  IX,  §  2.]  KINSHIP  195 

The  typical  tribe  which  has  been  described,  is  a  body  of  kindred 
divided  into  brother  and  sister  groups,  ever}^  group  having  some 
kinship  with  every  other  group.  Marriage  is  without  the  clan 
but  within  the  tribe,  therefore  a  man  cannot  marry  into  his  own 
sister-group,  but  must  marry  into  some  cousin-group.  To  the 
consanguineal  tie  an  affinital  tie  is  added.  A  male  cousin  becomes 
the  husband,  and  a  female  cousin  becomes  the  wife.  In  many 
cases  the  brother-group  of  the  husband  becomes  a  husband-group, 
and  the  sister-group  of  the  wife  becomes  a  wife-group.  The  brother- 
group  of  the  husband  is  related  to  all  the  other  groups  of  the 
tribe,  and  the  sister-group  of  the  wife  is  also  related  to  all  the  other 
groups  of  the  tribe.  It  is  interesting  to  study  the  effect  which 
marriage  (real  or  potential)  has  in  changing  the  consanguineal 
kinships  into  affinital  kinships.  Among  the  tribes  of  North 
America  there  is  much  diversity  in  this  respect,  but  the  subject 
is  too  much  burdened  with  details  to  be  considered  here. 


CHAPTER   X 
THE   PATRIARCHAL  THEORY  ^ 

I.    Statement  of  the  Theory 

Students  of  comparative  institutions  have  generally  regarded 
the  family  as  the  unit  or  germ  from  which  the  higher  forms  of  social 
organism  have  been  evolved.  A  German  scholar  declares  that 
among  all  the  races  of  antiquity  "the  constitution  of  the  family 
was  the  basis  and  prototyjje  of  the  constitution  of  the  state."  ^ 
The  same  theory  is  clearly  set  forth  and  the  process  of  political 
expansion  carefully  described  by  Plato  and  also  by  Aristotle,^ 
who  base  it  upon  their  own  obserAation  both  among  " Hellenes  and 
barbarians,"  and  each  illustrates  it  by  reference  to  the  Cyclops  of 
Homer.^  It  is  not  wholly  improbable,  as  will  presently  appear, 
that  the  family  in  some  form  must  be  accepted  as  the  initial  society, 
possibly  among  all  the  races  of  mankind.  At  a  very  early  ethnical 
period  the  family,  so  far  as  it  implies  great  authority,  perhaps 

1  [By  George  E.  Howard.  Reprinted  by  permission,  from  "A  History 
of  Matrimonial  Institutions,"  Vol.  1,  p.  9  seq..  The  University  of  Chicago 
Press,  1904.] 

2  Mnrquardt,  "Das  Privatleben  der  Romer,"  I,  1.  The  theory  is  also 
held  by  Bluntsckli,  "Theory  of  the  State,"  182-89;  Schrader,  ""Sprach- 
vergleichung  und  Urgeschichte,"  391-95;  Leist,  "  Alt-arisehes  Jus  Gen- 
tium," 113;  Muller,  "Handbueh  der  klass.  Alterthumsrassensehaft," 
IV,  18-20;  Gilbert,  "Handbueh  der  griech.  Staatsaltertniimer,"  II, 
302;  Maine,  "Village  Communities,"  15  ff . ;  "Ancient  Law,"  118  ff. ; 
^' Early  Law  and  Custom,"  chap,  iii ;  Fustel  de  Coulanges,  .'''Ancient 
City,"  111  ff. ;  Grote,  '''History  of  Greece,"  I,  561;  Thumser,  "Die 
griech.  Staatsalterthiimer,"  28  ff. 

^  Plato,  ^'Laws,"  Book  III,  680,  681;  Jo w)e«,  ^'Dialogues,"  IV;  209; 
Aristotle,  "Politics,"  Book  I,  2  ff. ;  Jowett,  I,  2  ff.  These  are  followed 
by  Cicero,  "De  Officiis,"  I,  17. 

^  "They  (the  Cjclops)  have  neither  assemblies  for  consultation  nor 
themistes,  but  everj^one  exercises  jurisdiction  over  his  waves  and  his 
children,  and  they  pay  no  regard  to  one  another."  —  "Odyssey,"  Book 
IX,  106  ff.,  as  rendered  by  Maine,  "Ancient  Law,"  120.  Cf.  "Odyssey, 
Book  VI,  5  ff. ;  Brtjaiit's  Trsms.,  I,  144,  215,  216.  On  the  themistes,  as 
inspired  commands  of  the  hero-king,  handed  down  to  him  from  Zeus  by 
Themis,  see  Maine,  chap,  i ;  and  on  the  import  of  the  passage  in  Homer 
compare  ibid.,  120,  with  Freeman,  "'Comparative  Politics,"  379  n.  20,  and 
Botsford,  "Athenian  Constitution,"  3,  4. 

196 


Chap.  X.]  THE    PATRIARCHAL   THEORY  197 

even  the  despotic  power  of  the  house-father  over  his  wife  and 
children,  may  often  have  been  "patriarchah"  To  admit  this,  how- 
ever, is  very  different  from  accepting  as  the  primordial  cell  of  social 
development  the  strictly  defined  patriarchal  family  of  Sir  Henry 
Maine's  "  Ancient  Law."  In  this  book,  which  made  its  appear- 
ance in  1861,  we  are  told  that  the  "effect  of  the  evidence  derived 
from  comparative  jurisprudence  is  to  establish  that  view  of  the 
primeval  condition  of  the  human  race  which  is  known  as  the 
Patriarchal  Theory."  ^  The  primitive  family  as  thus  conceived  is 
substantially  the  Roman  family,  not  in  all  respects  as  it  actually 
appears  in  the  historical  period,  but  as  it  is  thought  that  it  must 
have  been  before  the  process  of  transformation  and  decay  began. 
It  is  a  much  more  extended  group  than  the  modern  family,  em- 
bracing under  the  headship  of  the  eldest  valid  male  parent  all 
agnatic  descendants  and  all  persons  united  to  it  by  adoption,  as 
well  as  slaves,  clients,  and  other  dependents.-  The  power  of  the 
house-father  is  most  despotic,  though  exercised  during  his  entire 
lifetime  over  the  unmarried  daughters  and  over  even  the  married 
sons  and  their  wives  and  children.  Thus  originally,  it  is  said,  the 
Roman  jpater  familias  has  power  of  life  and  death,  vita  necisque, 
over  his  children.  He  may  sell  them  into  slavery,  and  sons,  even 
those  who  hold  the  highest  offices  of  state,  can  originally  own  no 
property.^  The  patriarch  is  king  and  priest  of  the  household. 
As  a  sort  of  "  corporation  sole,"  he  is  likewise  its  representative  and 
administrator  ;  for  the  property  is  regarded  as  a  part  of  the  family, 
and  on  the  death  of  the  house-father  the  family  devolves  upon  the 
universal  successor."*  A  characteristic  feature  of  the  patriarchal 
family  is  agnation,  or  the  system  of  tracing  kinship  through  males 

1  "Ancient  Law,"  118. 

-  Clients,  servants,  and  even  those  admitted  to  the  hearth  as  guests, 
by  observance  of  the  proper  rites,  were  regarded  as  members  of  the  family 
gi'oup  and  sharers  in  the  sacra.  Hearn,  "Aryan  Household,"  73,  107  f.; 
Fustel  de  Coulanges,  "Ancient  City,"  150;  Maine,  op.  cit.,  156  ff.,  185  ff. 
(sacra). 

3  For  the  Roman  patria  potestas  see  Paste,  "Gains,"  61  ff. ;  Leist, 
"Graeco-itaUseheRechtsgeschichte,"  57-102;  Sohm,  "Institutes,"  120  ff., 
356  &.,  385-95;  Bernhdft,  "Romische  Konigszeit,"  175  ff. ;  Puchta, 
"Institutionen,"  II,  384  ff. ;  Morey,  "Outlines  of  Roman  Law,"  23,  24; 
Sc/ie!/r/,  "Institutionen,"  271,  272 ;  Kuntze,  "Excurse,"  570  ff. ;  Maine, 
"Ancient  Law,"  123  ff.,  130  ff.,  227,  228;  Hadley,  "Roman  Law,"  119  ff . ; 
Clark,  "Earlv  Roman  Law,"  25;  Muirhcad,  "Hist.  Int.  to  the  Private 
Law  of  Rom^e,"  27  ff.,  118,  222;  Lange,  "Romische  Alterthiimer,"  I, 
112  ff . ;  Grupen,  "Uxore  romana,"  19  ff.,  37  ff. ;  Bader,  "La  femme 
romaine,"  75  ff. ;  Tardieu,  "Puissance  paternelle,"  5  ff. ;  Bourdin,  "Con- 
dition de  la  mere,"  9  ff.  On  the  power  of  the  father  to  expose  female 
infants  during  the  early  empire,  see  Capes,  "Age  of  the  Antonines,"  19  f. 

••  Maine,  "Ancient  Law,"  122,  and  chap.  vi. 


i 


198  PERSONS  [Part  II. 

only.^  Agnatic  relationship  "is  in  truth  the  connection  between 
members  of  the  family,  conceived  as  it  was  in  the  most  ancient 
times."-  Its  foundation  is  "not  the  marriage  of  father  and  mother, 
but  the  authority  of  the  father.  ...  In  truth,  in  the  primitive 
view,  relationship  is  exactly  limited  by  jxitria  potestos.  Where 
the  potestas  begins,  kinship  begins ;  and  therefore  adoptive  rela- 
tives are  among  the  kindred.  Where  the  potestas  ends,  kinship 
ends ;  so  that  a  son  emancipated  by  his  father  loses  all  rights  of 
agnation.  And  here  we  have  the  reason  why  the  descendants  of 
females  are  outside  the  limits  of  archaic  kinship."  Indeed  "it  is 
obvious  that  the  organization  of  primitive  societies  would  have 
been  confounded,  if  men  had  called  themselves  relatives  of  their 
mother's  relatives."  ^  The  basis  of  the  patriarchal  family  is  the 
pairia  potestas,  but  in  its  "normal  shape"  it  has  not  been  and  could 
not  be  "generally  a  durable  institution."^  Yet  its  former  uni- 
versality may  be  inferred  from  certain  derivative  institutions,  such 
as  the  perpetual  tutelage  of  women,  the  guardianship  of  minors,  the 
relation  of  master  and  slave,  and  especially  from  agnation  which  is 
found  "almost  everywhere"  and  is  "as  it  were  a  mould"  retaining 
the  imprint  of  the  paternal  powers  after  they  have  ceased  to  exist.'' 
Applying  this  test  chiefly,  Maine  finds  evidence  of  the  existence  of 
the  potestas  aniong  the  Hebrews  as  well  as  all  the  peoples  of  the 
Aryan  stock ;  and  he  believes  that  it  would  be  hard  to  say  "  of 
what  races  of  men  it  is  not  allowable  to  lay  down  that  the  society  in 
which  thev  are  united  was  originallv  organized  on  the  patriarchal 
modeL"6^ 

The  patriarchal  family  as  thus  constituted  is  the  "type  of  an 
archaic  society  in  all  the  modifications  which  it  was  capable  of 
assuming."  From  it  as  in  concentric  circles  have  been  succes- 
sively evolved  all  the  higher  forms  of  political  organization. 
Everywhere,  as  at  Rome,  "the  aggregation  of  families  forms  the 
gens  or  house.  The  aggregation  of  houses  makes  the  tribe.  The 
aggregation  of  tribes  constitutes  the  commonwealth."  ^    The  state 

>  On  the  Roman  agnation  see  Posfe,  "Gains,"  113  ff. ;    Leist,  ^'Graeeo- 
italische   Rechtsgeschichte,"   64  ff. ;     Sohm,   "Institutes,"    124,   355  ff. 
Puchta,  "Institutionen,"  II,  17  ff. ;    Moyle,  "Institutiones,"  I,  155,  150 
Morey,  op.  cit.,  6,  34  ;   Kuntze,  "Excurse,"  435-37  ("  Agnation sverband") 
Lange,  " Romische  Alterthiimer,"  I,  211  ff. ;    Muirhead,  "Hist.  Int.  to  the 
Private  Law  of  Rome,"  43  ff.,  122  ff. ;    Hadley,  "Roman  Law,"  130  ff. ; 
Maine,  op.  cit.,  56,  141  ff. 

2  Maijie,  op.  cit.,  142.  ^  Ihid.,  144.  ^  Ibid.,  141. 

5  Ibid.,  141  ff.,  145  ff.  6  Ibid.,  118  ff.,  po.s.s/m. 

^  Ibid.,  123,  124, 128.  See  the  table  of  comparative  groups  in  Schrader, 
''Spraehvergleiehung  und  Urgeschiehte,"  394.  For  the  Ionic  groups 
cf.  5c/iOOTflnn,  "Antiquities,"  317,364;  "Athenian  Constitution,"  3-10; 
Wachsviuth,  "Hist.  Ant.,"  I,  342  f. ;    MUllcr,  "Handbuch,"  IV,  17-22; 


Chap.  X.]  THE    PATRIARCHAL  THEORY  199 

is  therefore  the  result  of  the  expansion  of  its  primordial  cell ;  ^  and 
the  genealogical  organization  of  society  precedes  and  overlaps  the 
territorial.  All  these  groups,  lower  and  higher,  regard  themselves 
as  united  by  the  bond  of  kinship.  But,  as  a  matter  of  fact,  the 
kinship  is  often  assumed ;  and  the  heterogeneity  of  blood  is  ex- 
plained as  the  result  of  the  fiction  of  adoption  by  which  relationship 
is  artificially  extended  and  strangers  are  admitted  to  the  sacra. 
"Without  this  fiction,  says  Maine,  "I  do  not  see  how  any  one  of  the 
primitive  groups,  whatever  were  their  nature,  could  have  absorbed 
another,  or  on  what  terms  any  two  of  them  could  have  combined, 
except  those  of  absolute  superiority  on  one  side  and  absolute  sub- 
jection on  the  other."  Society  could  hardly  have  escaped  from 
its  "swaddling  clothes."  -  Furthermore,  a  strong  motive  for  the 
artificial  extension  of  the  family  is  derived  from  the  worship  of 
ancestors.  The  earnest  desire  of  the  ancients  for  male  issue  to 
perpetuate  the  family  rites  has  tended  to  foster  adoption,  and  it 
probably  accounts  for  the  levirate  and  other  similar  expedients  to 
provide  an  heir.^ 

II.     Criticism  of  the  Theory  by  Spencer  and  McLennan 

The  patriarchal  family  of  the  "  Ancient  Law,"  whose  leading  fea- 
tures have  now  been  presented,  reappears  with  slight  modification 

Grote,  "Hist,  of  Greece,"  III,  52,  53.  In  general,  cf.  Fustel  de  Coulanges, 
"Ancient  City,"  141  ff. ;  Hear7i,  "Aryan  Household,"  63  ff.,  112  fif., 
passim;  Leist,  " Graeco-italische  Rechtsgeschichte,"  and  " Alt-arisches 
Jus  Gentium." 

1  For  Freeman's  well-known  theory  of  political  expansion  see  "Com- 
parative Politics,"  chap.  iii. 

-  Maine,  "Ancient  Law,"  125  ff.,  26.  On  the  new  mode  of  adoption 
in  India  see  Maijne,  "Hindu  Law  and  Usage,"  88  ff. ;  Lyall,  "Asiatic 
Studies,"  chap.  \ai ;  "Fortnightly  Review,"  Jan.,  1877;  Jolly,  "Hindu 
Law  of  Partition,"  144-66.  On  the  formation  of  non-genealogical  clans 
see  Hearn,  "Aryan  Household,"  296  ff.  Cf.  Post's  discussion  of  "Kiinst- 
liche  Verwandtschaf t "  in  "Studien  zur  Entwicklungsgeschichte  des 
Familienrechts,"  25-42;    Kohler,  "ZVR.,"  V,  415-40. 

^  Maine,  "Early  Law  and  Custom,"  chaps,  iii,  iv,  viii.  For  ancestor- 
worship  see  especially  Fustel  de  Coulanges,  "Ancient  Citv,"  9-52;  Hearn, 
"Aryan  Household,"  15  ff.,  45,  46,  59,  60;  Tylor,  "Primitive  Culture," 
II  ("Animism");  Mayne,  "Hindu  Law  and  Usage,"  55,  438;  Lyall, 
"Asiatic  Studies,"  chap,  ii ;  Duruy,  "Hist,  of  Rome,"  I,  206;  Zimmer, 
"Altindisches  Leben,"  413;  Botsford,  "Athenian  Constitution,"  24,  25, 
passi7n,  who  holds  against  Schroder,  "Sprachvergleichung"  (2d  ed.), 
613-15,  that  ancestor-worship  arose  before  the  separation  of  the  Aryan 
races.  Fustel  de  Coulanges,  "Ancient  City,"  49-51,  and  Hearn  regard 
the  religious  tie  as  of  more  importance  than  the  blood-bond  in  the  for- 
mation of  the  gentile  groups,  "Aryan  Household,"  66  ;  and  Leist,  "Graeco- 
italische  Rechtsgeschichte,"  7  ff.,  11  ff.,  also  makes  the  formation  of  the 
first  recognized  groups  of  relationship  depend  on  the  sacra.  Cf.  Kohler, 
in  "  ZVR.,"  VI,  409-17,  for  animism  ;  and  for  additional  references,  a  sub- 
sequent note. 


200  PERSONS  [Part  II. 

in  the  later  writings  of  Sir  Henry  Maine.  ^  It  has  been  widely 
accepted.  Yet  it  was  inevitable  that  a  theory  which  on  its  face 
appears  to  neglect  many  of  the  most  remarkable  facts  everywhere 
observable  in  the  social  life  of  primitive  men  ^  should  arouse  most 
serious  doubt.  Nor  will  it  do,  with  Starcke,^  to  excuse  the  author 
on  the  ground  that  his  conclusions  are  intended  to  be  true  only  for 
the  domain  of  the  law-books,  of  comparative  jurisprudence ;  for 
obviously  his  language  will  not  bear  that  construction. 

Herbert  Spencer  was  the  first  writer  to  subject  Maine's  hypoth- 
esis to  a  luminous  criticism.^  First  he  points  out  that  JNIaine 
has  not  been  entirely  guiltless  of  "the  lofty  contempt"  entertained 
by  civilized  peoples  for  their  barbarous  neighbors,  which  he  himself 
censures  as  a  serious  error.  For  he  "has  practically  disregarded 
the  great  mass  of  the  uncivilized"  peoples,  and  "ignored  the  vast 
array  of  facts  they  present  at  variance  with  his  theory."  Nor,  in 
favor  of  a  primitive  patriarchal  state,  is  it  safe  to  assume  that  "the 
implicit  obedience  of  rude  men  to  their  parents  is  doubtless  a 
primary  fact."  For,  "though  among  lower  races,  sons,  while 
young,  may  be  subordinate,  from  lack  of  ability  to  resist ;  yet  that 
they  remain  subordinate  when  they  become  men  cannot  be  assumed 
as  a  uniform,  and  therefore  as  a  primary,  fact."  This  objection  is 
sustained  by  reference  to  many  savage  and  barbarous  tribes 
among  which  parents  exercise  little  or  no  control  over  the  children. 
Again,  it  is  by  no  means  established  that  "  the  history  of  political 
ideas  begins,  in  fact,  with  the  assumption  that  kinship  in  blood  is 
the  sole  possible  ground  of  community  in  political  functions." 
On  the  contrary,  "political  co-operation  arises  from  the  conflicts 
of  social  groups  with  one  another ; "  ^  and  though  it  may  be  facili- 
tated by  a  feeling  of  common  descent,  examples  of  political  com- 

1  "Early  Hist,  of  Institutions,"  64  ff.,  115  ff.,  217  ff.,  306-41 ;  "Village 
Communities,"  15,  16,  passim ;^  "Early  Law  and  Custom,"  chaps,  iii, 
iv,  and  especially  chaps,  vii,  viii,  where  adverse  criticism  is  considered. 
Cf.  McLennan,  "' Patriarchal  Theory,"  1-23,  for  a  collation  of  the  more 
important  passages  of  Maine's  wi-itings. 

2  "The  rudiments  of  the  social  state,  so  far  as  they  are  known  to  us  at 
all,  are  known  through  testimony  of  three  sorts  —  accounts  by  contempo- 
rary observers  of  civilization  less  advanced  than  their  own,  the  records  which 
particular  races  have  preserved  concerning  their  primitive  history,  and 
ancient  law."  Of  these  three  sources  of  information,  Maine  regards  an- 
cient law  as  the  best.  He  fails  entirely  to  appreciate  the  true  importance 
of  the  first  soiu'ce,  from  which,  obviously,  are  derived  most  of  the  data 
of  recent  ethnical,  and  anthropological,  and  sociological  investigation, 
including  nmch  that  Maine  himself  has  presented.  Cf.  the  criticisms  by 
Spencer,  "Principles  of  Sociologv,"  1,713,  714;  Lubbock,  ^'Origin  of  Civi- 
lization," 6  ff. ;    McLennan,  "Patriarchal  Theory,"  29,  30. 

3  "Primitive  Familv,"  94,  95. 

«  "Principles  of  Sociology,"  I,  713-37.  ^  j^d,^  716,  717,  540-53. 


Chap.  X.]  THE    PATRIARCHAL   THEORY  201 

bination  may  be  produced  in  which  relationship  is  not  considered. 
Furthermore,  it  is  hard  to  conceive  how  so  advanced  a  conception 
of  government  as  is  impHed  by  the  patria  postestas  could  exist  in  the 
"  infancy  of  society ;  "  nor  has  it  yet  been  proved  that  in  the  primi- 
tive state  the  individual  is  entirely  lost  in  the  family  group,  which 
holds  all  property  in  common.  Instances  of  "personal  monopoly" 
of  property  among  low  races  are  not  wanting.  Finally  the  assump- 
tion that  in  the  primordial  state  women  remained  in  perpetual 
tutelage  is  without  foundation.^  .  ,  . 

But  the  patriarchal  theory  has  been  vigorously  attacked  in  its 
very  strongholds,  the  laws  of  the  Hebrews  and  the  primitive  cus- 
toms of  the  Indo-Germanic  peoples.  The  well-known  polemic  of 
the  late  J.  F.  ]McLennan  is  of  special  interest  in  this  connection.- 
Among  none  of  the  Aryan  races,  the  Romans  only  excepted,  does 
he  find  the  patria  potestas  or  the  strict  rule  of  agnation ;  while 
among  them  all,  he  believes,  abundant  evidence  of  original  pro- 
miscuity and  of  the  maternal  system  of  kinship  is  disclosed.  Even 
the  Hebrew  Scriptures,  where  ]Maine  perceives  "the  chief  linea- 
ments" of  the  patriarchal  society,^  so  far  from  revealing  the 
patria  potestas  and  agnation,  bear  witness  to  "beena"  ^  marriage 

1  Mr.  Spencer  also  points  out  that  Maine  does  not  take  into  account 
"stages  in  human  progress  earlier  than  the  pastoral  or  agricultural."  — 
Op.  cit.,  I,  724  fif. 

-  "The  Patriarchal  Theory,"  edited  and  completed  by  Do7iald  Mc- 
Lennan (London,  188.5). 

3  "Ancient  Law,"  118-20,  12.3. 

*  The  marriage  of  Jacob  with  Laban's  daughters  is  the  case  in  point.  In 
"beena"  marriage  —  the  name  given  to  the  institution  in  Ceylon  —  "the 
young  husband  leaves  the  family  of  his  birth  and  passes  into  the  family 
of  his  wife,  and  to  that  he  belongs  as  long  as  the  marriage  subsists.  The 
children  born  to  him  belong,  not  to  him,  but  to  the  family  of  their  mother. 
Living  with,  he  works  for,  the  family  of  his  wife ;  and  he  commonly  gains 
his  footing  in  it  by  service.  His  marriage  involves  usually  a  change  of 
village ;  nearly  always  (where  the  tribal  system  is  in  force)  a  change  of 
tribe  —  so  that,  as  used  to  happen  in  New  Zealand,  he  may  be  bound  even 
to  take  part  in  war  against  those  of  his  father's  house  ;  but  always  a  change 
of  famih-.  The  man  leaves  father  and  mother  as  completely  as,  with 
the  patriarchal  family  prevailing,  a  bride  would  do ;  and  he  leaves  them 
to  live  with  his  wife  and  her  family.  That  this  accords  with  the  passage 
in  Genesis  will  not  be  disputed."  "Patriarchal  Theorj,"  42,  43.  Never- 
theless, in  this  case  INIcLennan  is  certainly  mistaken.  We  have  here  to 
do  with  that  form  of  wife-purchase  called  "marriage  by  service;"  see 
Lichtschein,  "Die  Ehe,"  10,  11;  the  argument  of  Wake,  "Marriage  and 
Kinship,"  239-44;  and  Fricdrichs,  "  Familienstufen  und  Eheformen," 
"ZVR.,"  X,  207,  208.  "Beena"  marriage  existed,  however,  among  other 
Semitic  peoples  and  possibly  also  among  the  Hebrews:  Smith,  "Kinship 
and  Marriage,"  108,  175-78,  146.  It  is  found  also  in  Africa  and  in  many 
other  places  :  Wake,  op.  cit.,  149,  299-301  ;  McLennan,  op.  cit.,  43  ;  Wester- 
marck,  "Human  :Marriage,"  109,389-90;  Tylor,  "On  a  Method  of  Inves- 
tigating Institutions."  246  ff. ;  Starcke,  op.  cit.,  78;  Hellwald,  *'Die 
mensch.  Familie,"  255,  266. 


202  PERSONS  [Part  II. 

and  the  recognition  of  kinship  in  the  female  ^  Hne.  Sir  Henry- 
Maine  in  this  connection  refers  incidentally  to  Sir  Robert  Filmer  in 
whose  "  Patriarchia  "  the  existence  of  the  patria  potestas  among  the 
ancient  Hebrews  is  alleged.  But,  as  McLennan  justly  observes, 
"to  those  who  have  studied  the  controversy  between  Locke  and 
Filmer-  it  may  seem  wonderful  that  the  truth  of  Filmer's  main 
position  could  be  thus  lightly  assumed  by  anyone,  and  especially 
by  any  lawyer,  who  had  read  Locke's  masterly  reply  to  the  plead- 
ings of  his  opponent."  ^  The  principal  conclusions  of  ^McLennan 
are  sustained  in  a  striking  way,  for  a  sister-branch  of  the  Semitic 
race,  by  the  researches  of  Wilken  and  Robertson  Smith  into  the 
marriage  customs  of  early  Arabia.^  The  ancient  Hebrews  did  not 
have  agnation ;  yet  they  "  traced  descent  from  the  father  for  the 
purposes  of  what  we  may  call  rank,  or  a  feeling  of  caste,"  and  this 
was  the  source  of  paternal  power.''  The  house-father  exercised  a 
high  degree  of  authority  over  his  wives  and  children,  but  he  can 
scarcely  be  regarded  as  a  patriarch  in  the  strict  sense  of  the  term.^ 

1  On  the  Hebrew  family  see  ''Patriarchal  Theory,"  35-50,  132,  133, 
243-47,  273,  274  note,  289,  306,  307,  315,  passim. 

"^Filmer's  "Patriarchia,  or  the  Natural  Power  of  Kings,"  appeared 
in  1680;  Locke  s  "Two  Treatises  on  Government,"  in  1690.  Both  works 
are  reprinted  in  the  ninth  number  of  Morley's  "Universal  Library." 

'  See  "Patriarchal  Theory,"  36  ff.,  243  ff.,  273  note,  where  a  summary 
of  Locke's  argument,  with  additional  evidence  against  the  existence  of 
agnation  and  patria  potestas  and  in  favor  of  an  original  maternal  system 
among  the  Hebrews,  'wall  be  found. 

*  Robertson  Sviith,  '''Kinship  and  Marriage";  Wilken,  "Das  Matriar- 
chat  bei  den  alten  Arabern,"  a  work  suggested  b^^  Smith's  "Animal 
Worship  and  Animal  Tribes,"  "Journal  of  Philology,"  IX,  75-100.  These 
writers  have  found  among  these  Semitic  tribes  the  system  of  kinship 
through  the  mother  in  actual  use,  with  traces  of  polyandry,  exogamy, 
and  the  totem  gens;  and  Wilken  believes  that  he^finds  evidences  of  early 
promiseuitv.  See  especiallv  Kohler,  "Ueber  das  vorislamitische  Recht 
der  Araber,"  "  ZVR.,"  VIII,  238-61 ;  and  Friedrichs,  "Das  Eherecht  des 
Islam,"  ibid.,  VII,  240-84,  especially  255  ff.,  who  shows  that  the  Moham- 
medan house-father  exercises  great  authority  over  his  wife,  yet  she  has 
her  own  property  and  receives  a  dower.  At  present,  relationship  in  Arabia 
is  generally  counted  in  the  male  line  ;  and  therefore,  Westermarck,  "Human 
Marriage,"  102,  note  4,  regards  the  conclusion  of  Smith  that  originally 
the  system  of  female  kinship  exclusively  prevailed  as  "a  mere  hypothesis." 

5  Wake,  "Marriage  and  Kinship,"  244. 

^  According  to  Eivald  the  ancient  Hebrew  father  might  "sell  his  child 
to  relieve  his  own  distress,  or  offer  it  to  a  creditor  as  a  pledge."  —  "The 
Antiquities  of  Israel"  (London,  1876),  190;  Westerrnarck,  op.  cit.,  228; 
and  the  Levitieal  law  prescribes  death  as  the  penalty  for  striking  a  parent 
(Leviticus  20  :  9 ;  Exodus  21  :  15,  17) ;  but  the  penalty  could  only  be  ad- 
ministered through  appeal  to  the  whole  community,  Westermarck,  op.  cit., 
228.  Cf.  Michaelis,  "Commentaries  on  the  Laws  of  Moses,"  I,  444, 
who  shows  that  the  mother,  as  well  as  the  father,  might  sometimes  choose 
wives  for  the  sons ;  while  McLennan  and  Locke  prove  that  the  position 
of  the  mother  in  Israel  was  higher  than  is  consistent  with  Roman  patriar- 
chalism. 


Chap.  X.]  THE   PATRIARCHAL  THEORY  203 

III.    The   Theory  in  the  Light  of  Recent  Research 

Let  us  now  see  somewhat  more  in  detail  what  light  is  thrown  by 
recent  investigation  on  the  controversy  between  Maine  and  Mc- 
Lennan. Westermarck  has  taken  great  pains  to  enumerate  the 
uncivilized  peoples,  chiefly  non-Aryan,  among  whom  descent  and 
usuallj'  inheritance  follow  the  paternal  side ;  ^  and  he  finds  that  the 
number  is  "scarcely  less"  than  the  number  of  those  among  whom 
the  female  line  is  exclusively  recognized.  But  in  many  of  these 
cases  it  seems  probable  that,  the  parental  rather  than  the  agnatic 
system  prevails,  though  the  male  line  may  take  precedence.  In 
some  instances  rank  or  authority  descends  from  father  to  son,  while 
in  other  respects  the  female  line  predominates.  Doubtless  more 
frequently  than  is  usually  imagined  a  mixed  system  rather  than  a 
strictly  paternal  or  a  strictly  maternal  system  would  be  found  to 
exist.2  As  the  result  of  his  inquiry,  Westermarck  rejects  the  hy- 
pothesis that  kinship  through  the  mother  is  a  primitiveand  universal 
stage,  though  he  does  not  substitute  the  agnatic  theory  in  its  place. 
Starcke,  on  the  other  hand,  after  an  extended  examination  of  the 
customs  of  rude  races,  especially  in  America  and  Australia,  suggests 
that  the  paternal  as  a  general  rule  probably  preceded  the  maternal 
system  which  arose  only  with  the  development  of  the  gentile 
organization.^  But  Starcke's  evidence  can  scarcely  be  accepted  as 
convincing. 

Similar  difficulties  are  presented  by  the  question  of  the  prev- 
alence of  the  so-called  patriarchal  power  among  non-Aryan  races. 
Many  apparent  examples  of  despotic  authority  can  be  enumerated  ;  ^ 
but  it  is  often  hard  to  determine  whether,  as  in  the  cases  of  the 
Arabs  and  Hebrews,  we  have  to  do  merely  with  a  high  degree  of 

1  "Human  Marriage,"  97-104,  notes.  Cf.  Friedrichs,  "Ueber  den 
Ursprung  des  Matriarehats,"  "ZVR.,"  VIII,  371-73;  Kohler,  ibid.,  VI, 
403  (Korea);   VII,  373  (Papuas). 

2  Compare  Wake,  "Marriage  and  Kinship,"  267  ff.,  362  ff.,  382,  396  ff. ; 
especially  Friedrichs,  "  Familienstuf en  iind  Eheformen,"  "  ZVR.,"  X,  209- 
12;  and  Darr/un,  "Mutterreeht  und  Vaterrecht,"  3,  28,  118.  who  believed 
the  so-called  "mixed  systems"  are  merely  a  consistent  union  of  two  en- 
tirely different  principles  —  the  principle  of  relationship  with  the  prin- 
ciple of  power  or  protection. 

3  Starcke,  op.  cit.,  26,  27  (Australia),  30  (America), 58 ff.,  101  ff.  Com- 
pare the  criticism  of  Helhvald,  "Die  mensch.  Familie,"  456  ff. ;  and  on  the 
development  of  the  patriarchal  familv,  see  Lippert,  "Kulturgeschichte," 
II,  505-54. 

*  Westermarck,  op.  cit.,  224-35,  gives  an  enumeration.  Noteworthy 
examples  of  patriarchal  power  are  afforded  by  the  ancient  Peruvians  and 
Mexicans,  and  by  the  modern  Chinese  and  Japanese.  On  the  Xahua 
and  Mava  natives  see  Bancroft.  "Native  Races,"  II,  247-53,  663-68. 
Cf.  Kohler.  "Das  Recht  der  Azteken."  "ZVR.,"  XI,  54,  55;  also  ibid., 
VI,  374  (Chinese),  333,  334;    VII,  373  (Papuas). 


204  PERSONS  [Part  II. 

power  on  the  part  of  the  house-father  or  with  a  genuine  patria 
potestas  of  the  Roman  type.  Naturally,  as  Westermarck  suggests, 
the  father's  authority  among  savages  "depends  exclusively,  or 
chiefly,  upon  his  superior  strength ;"  ^  while  anything  like  a  patri- 
archal "system"  can  only  arise  later  under  the  influence  of  ances- 
tor-worship and  more  developed  social  and  industrial  conditions. 
Where  authority  depends  solely  or  mainly  upon  brute  force, 
it  is  evident  that  a  very  protracted  patriarchal  despotism  over 
the  sons  is  hard  to  conceive.  INIoreover,  much  error  has  doubtless 
arisen  through  falsely  assuming  that  paternal  authority  and 
mother-right  are  incompatible ;  whereas  they  may  well  coexist,  as 
will  presently  appear. 

For  the  Indo-Germanic  or  Aryan  peoples  the  investigations  of 
Zimmer,  Schrader,  Delbriick,  Kohler,  and  especially  the  researches 
of  Leist,  enable  us  to  speak  with  a  higher  degree  of  confidence, 
though  only  for  the  period  covered  by  positive  linguistic  and  legal 
evidence.  Bachofen,  McLennan,  and  after  them  many  other 
writers,^  .  .  .  have  maintained  that  among  all  branches  of 
the  Aryan  stock  conclusive  proofs  exist  of  a  former  matriar- 
chate,  or,  at  any  rate,  of  exclusive  succession  in  the  female 
line.  But  this  view  is  decidedly  rejected,  if  not  entirely  over- 
thrown, by  the  philologists,  and  depends  for  its  support  on  the 
presence  in  later  institutions  of  alleged  survivals.  The  judgment 
of  Delbriick  must  probably  be  accepted  as  decisive  for  the  present 
state  of  linguistic,  if  not  of  all  scientific,  inquiry.  He  declares 
that  "no  sure  traces  of  a  former  maternal  family  among  the  Indo- 
Germanic  peoples  have  been  produced."  ^  Similar  conclusions  are 
reached  by  Schrader,  Max  Miiller,  and  Leist.^    Also,  among  the 

'  Westerniarck,  op.  cit.,  225. 

-Bachofen,  "Das  Mutterreeht ; "  McLennan,  "Studies,"  I,  121  ff., 
195  £f.;  idem,  "Patriarchal  Theory,"  50  ff.,  71  ff.,  96  ff.,  120  ff.,  250  ff. ; 
Dargun,  "Mutterreeht  und  Raubehe,"  8,  13,  passim;  Giraud-Teulon, 
"Les  origines  du  mariage,"  130  ff.,  286  ff.,  329  ff. ;  idem,  "La  mere  ehez 
certaines  peuples  de  Tantiquite  "  ;  Lipperf,  "Gesehiehte  der  Familie," 
4  ff. ;  Lubbock,  "Origin  of  Civilization,"  153,  154.  Kohler,  "Indisehes 
Ehe-  und  Familienreeht,"  "ZVR.,"  Ill,  393  ff.,  holds  that  the  primitive 
Aryans  must  necessarily  have  recognized  relationship  tlirough  the  mother. 
For  the  literature  of  this  subject  see  the  next  chapter. 

^Delbriick,  "Das  Mutterreeht  bei  den  Indogermanen,"  "Preussiche 
Jahrbiicher,"  XCVI,  14-27,  a  clear  summary  of  the  results  of  recent 
research.  Cf.  his  "Die  Indogermanischen  Verwandtschaf  tsnamen " 
(Leipzig,  1889).  According  to  Hellwald,  "Die  mensch.  Familie,"  453-80, 
especially  459,  460,  patriarchalism  was  fully  established  at  the  earliest 
dawn  of  Indie  history  ;  but  there  are  nevertheless  traces  of  earlier  mother- 
right. 

*  Schrader,  "  Sprachvergleichung  und  Urgeschiehte"  (2d  ed.),  536  ff. ; 
Jevon's  Translation,  369  ff. ;  Leist,  "Alt-arisches  Jus  Gentium,"  51-58. 
Max  Miiller  declares  that  "whether  in  unknown  times  the  Aryas  ever 


Chap.  X.]  THE    PATRIARCHAL  THEORY  205 

institutional  writers,  Wake  declares  that  "primitively  among  the 
peoples  belonging  to  the  wide-spread  Aryan  or  Indo-European 
stock,  while  relationship  was  acknowledged  through  both  parents, 
descent  was  traced  preferably  in  the  male  line;"  ^  and  Bernhoft, 
constrained  through  the  evidence  presented  by  Schrader  and 
Delbruck,  believes  that  it  is  now  placed  "beyond  question  that 
the  primitive  Aryans  did  not  live  according  to  mother-right," 
but  were  united  in  family  groups  resembling  th6  south  Slavonian 
house  communities.-  On  the  other  hand,  Dargun,  the  foremost 
defender  of  the  theory  of  mother-right,  thinks  that  Bernhoft 
has  "capitulated"  too  easily.^  In  his  last  monograph,  entitled 
"Mutterrecht  und  Vaterrecht,"he  maintains  essentially  the  conclu- 
sion of  his  "  Mutterrecht  und  Raubehe,"  that  before  their  separa- 
tion the  Aryan  people  had  developed  the  system  of  kinship  "through 
the  mother  as  the  only  or  chief  basis  of  blood-relationship  "  and  had 
"subordinated  their  entire  family  law  to  this  principle."*^  But 
the  later  treatise  contains  a  very  important  modification,  or 
perhaps,  more  justly  speaking,  extension,  of  the  author's  theory. 
Setting  aside  as  still  an  open  question  the  general  prevalence  of 
promiscuity  or  sexual  communism  at  the  very  dawn  of  distinctively 
human  life,  Dargun  conceives  that,  before  any  system  of  kinship, 
maternal  or  agnatic,  became  recognized  as  a  principle  of  customary 
family  law,  there  must  have  existed  a  family,  or  rather  parent- 
group  (Elterngruppe),  in  which  the  father  was  protector  and  master 
of  the  mother  and  her  children.  This  parent-group  is  the  "hypo- 
thetical primordial  cell  of  the  family,"  brought  together  by  sexual 
reciuirements  and  the  need  of  sustenance  and  protection.  It  is 
"structureless,  devoid  of  any  firm  bond,  since  it  rests  neither  upon 
the  principle  of  relationship  nor  that  of  legalized  power."  Its 
resemblance  to  the  patriarchal  family,  though  misleading,  "is  not 
without  significance."     For  it  "forms  the  necessary  stage  of  an 

passed  through  that  metrocratie  stage  in  which  the  children  and  all  fam- 
ily property  belong  to  the  mother,  and  fathers  have  no  recognized  position 
whatever  in  the  family,  we  can  neither  assert  nor  den^^"  —  "Biographies 
of  Words,"  xvii. 

'  Wahc,  "Marriage  and  Kinship,"  359  ff.,  especially  382,  where  a  thor- 
ough and  detailed  criticism  of  McLennan's  theory  is  given. 

-  Bernhoft,  "Die  Principien  des  eur.  Familienrechts,"  "  ZVR.,"  IX,  418, 
419,  437  ff.  See  also  his  "Romische  Konigszeit,"  202  ff. ;  and  his  articles 
in  "  ZVR.,"  VIII,  11  ;  IV,  227  ff. ;  and  compare  Dargun,  "Mutterrecht  und 
Vaterrecht,"  91-94,  108.  Starckc,  op.  ctt.,  101-18,  also  gives  a  searching 
examination  of  the  theory  of  McLennan  and  the  earlier  views  of  Dargun, 
rejecting  their  concJusions. 

^  ^'Mutterrecht  und  Vaterrecht,"  108. 

■•  Dargun,  "i' Mutterrecht  und  Raubehe,"  13.  CJ.  the  "Mutterrecht 
imd  Vaterrecht,"  95,  117  ff.,  passim. 


206  PERSONS  [Part  II. 

evolution  which  in  analogous  manner  is  also  passed  through  by 
property.  Inductively  it  is  still  demonstrable  that  individualism 
and  atomism,  not  communism,  as  is  usually  assumed,  are  the 
starting  point  of  evolution."  ^  As  a  general  rule,  according  to 
Dargun,  the  structureless  parent-group  is  superseded  by  the  mater- 
nal family,  whose  basis  is  mother-right,  or  the  exclusive  legal 
recognition  of  blood-relationship  in  the  female  line.  Only  in 
rare  cases  does  the  patriarchal  agnatic  family  follow  immediately 
upon  the  primitive  group,  without  prior  development  of  mother- 
right  ;  ^  and  hence,  under  exceptional  conditions  hindering  the  rise 
of  the  maternal  system,  do  we  find  a  form  of  the  family  in  which, 
from  a  very  early  period,  the  house-father  is  the  source  of  author- 
ity, practical  or  legalized. 

Aside  from  his  theory  of  evolution,  in  his  principal  thesis,  which 
he  fairly  sustains  by  powerful  argument,  Dargun  has  rendered  to 
science  a  distinct  service.  It  is,  he  insists,  highly  necessary  care- 
fully to  distinguish  between  poiver  and  relationship.  "Mother 
right"  does  not  involve  "maternal  power"  or  the  matriarchate, 
though  sometimes  actually  united  with  it ;  nor  does  the  headship 
of  the  house-father  as  provider,  protector,  and  master  imply  agna- 
tion, the  so-called  "  father-right."  There  is  no  contrast  between 
power  and  relationship.  "  Mother-right  in  the  sense  of  exclusive 
maternal  kinship  is  compatible  with  a  patriarchate  just  as  exclu- 
sive." They  may,  and  often  do,  coexist.  It  follows  that  the 
presence  of  the  maternal  system  of  kinship  does  not  imply  the 
existence  of  maternal  power ;  just  as  it  does  not  imply  the  non- 
existence of  paternal  authority.  The  distinction  between  power 
and  kinship  is  justly  declared  to  be  an  "  indispensable  key"  for  the 
solution  of  the  greatest  difficulties  arising  in  this  branch  of  sociolog- 
ical science,  the  disregard  of  which  has  often  vitiated  or  confused 
the  argument  even  of  the  foremost  investigators.^  With  the  aid 
of  his  key  Dargun  examines  the  linguistic  evidence,  which  he  finds 
favorable  to  the  existence  of  mother-right  among  all  the  Aryan 
peoples  after  the  separation,  though  united  with  a  real  supremacy 
of  the  house-father ;  *  and  he  protests  vigorously  against  the  ten- 
dency, even  on  the  part  of  Leist,  to  confound  old  Indie  with  old 

1  Dargun,  -I'Mutterrecht  und  Vaterrecht,"  41,  42,  4  ff.,  28,  29-42,  118, 
passim. 

"-  Ibid.,  41. 

3  Ibid.,  3  ff.,  28,  36,  86  ff.,  155,  passim.  As  remarked  in  the  text,  the 
whole  work  is  concerned  with  the  thesis  in  question.  The  distinction  is 
also  made  in  the  "Mutterrecht  und  Raubehe,"  18. 

^  See  "Mutterrecht  und  Vaterrecht,"  86-116,  for  his  criticism  of  the 
linguistic  argument. 


Chap.  X.)  THE   PATRIARCHAL    THEORY  207 

Aryan  law ;  for  the  "  Indians  of  the  Vedas  are  in  many  respects 
more  advanced  than  the  Germans  a  thousand  or  the  Slavs  two 
thousand  years  later."  ^  Valuable  as  the  criticism  of  Dargun  un- 
doubtedly is,  notably  his  distinction  between  power  and  relation- 
ship, it  can  scarcely  be  admitted  that  he  has  done  more  than  re- 
open the  question  of  the  existence  at  any  time  of  mother-right 
among  the  Aryans.  His  results  are  negative.  He  has  not  shifted 
the  burden  of  proof ;  while  his  argument  tends  to  confirm  the  vievr 
of  the  philologists  that  from  the  primitive  stage  the  Aryan  father 
was  head  of  the  household.^ 

But  the  patriarchal  theory,  strictly  considered,  fares  little  better 
than  the  maternal  at  the  hands  of  recent  investigators.  Leist, 
who  has  been  able  with  wonderful  completeness  to  reconstruct  the 
juridical  life  of  the  early  household,  though  largely  on  the  basis  of 
old  Indie  sources,  declares  positively  that  "  the  Aryan  people  has 
not  within  itself  a  single  element  of  patriarchalism."  ^  This 
statement,  as  Bernhoft  observes,"*  is  perhaps  too  sweeping,  even 
when  tested  by  the  results  of  Leist's  own  researches ;  but  the 
patriarchal  family  of  Sir  Henry  Maine  does  not  appear.  The 
evolution  of  juridical  conceptions  among  the  old  Aryans,  according 
to  Leist,  presents  two  general  phases.  First  is  the  rita  stage,  or 
period  of  fixed,  divinely  appointed  order,  of  natural  law,  corre- 
sponding to  the  Greek  cosmos  or  ylmsis  and  the  Latin  ratum  or 
ratio  naturalis.  In  this  "  natural  history  "  or  pantheistic  stage 
there  is  at  first  little  idea  of  law  as  something  to  be  separately  con- 

'  Ibid.,  91,  92.  C/.  a  similar  protest  against  conclusions  as  to  the 
primitive  Arj^ans  derived  from  Greek  and  Roman  sources,  ibid.,  116; 
and  "Mutterrecht  und  Raubehe,"  14. 

•  "Mutterrecht  und  Vaterrecht,"  69,  denies  that  women  have  ever 
attained  political  headship  ;  but  (113,  114)  declares,  though  the  researches 
of  the  philologists  make  it  probable  that  the  Aryans  lived  under  the  rule 
of  house-fathers,  that  neither  this  fact  nor  any  other  circumstance  tells 
against  the  view  that  mother-right  coexisted  from  antiquity ;  while,  in 
a  still  more  remote  period,  this  may  have  implied  matriarchal  power 
in  the  family ;    but  of  such  a  matriarchate  no  proofs  are  presented. 

'  Leist,  "Graeco-italische  Rechtsgeschichte,"  64.  This  work  is  con- 
tinued in  the  "  Alt-arisches  Jus  Gentium,"  the  two  books  really  constituting 
a  single  treatise.  Compare  the  more  conservative  view  of  Jolly,  "Ueber 
die  rechtliche  Stellung  der  Frau,"  4  ff.,  20-22,  and  "Hindu  Law  of  Parti- 
tion," 76  ff.,  who,  however,  denies  the  existence  of  an  authority  on  the 
part  of  the  Hindu  husband  equal  to  that  of  the  Roman  pater. 

^Bernhoft,  "Zur  Geschichte  des  eur.  Familienrechts,"  "ZVR.,"  VIII, 
12,  15,  who  also  regards  the  view  of  Darqun,  "Mutterrecht  und  Raubehe," 
8,  13,  as  extreme.  Cf.  his  "Principien  des  eur.  Familienrechts,"  "ZVR.," 
IX,  416,  n.  39.  Kohler  favors  the  patriarchal  svstem  and  agnation  for 
the  Indie  peoples,  in  "  ZVR.,"  VII,  201,  210,  216  ;  'X,  85.  Hearn,  "Aryan 
Household,"  chaps,  iii-vi,  pasKirn,  takes  practically  the  same  view  as 
Maine  regarding  the  patriarchal  theory,  rejecting  entirely  for  the  Aryans 
the  matriarchal  hypothesis. 


208  PERSONS  [Part  II. 

templated.  Under  rita  is  comprehended  the  unchangeable  order 
observable  in  the  material  world  as  well  as  in  the  physical  and 
social  life  of  man ;  but  the  universe  and  the  creative  energy,  the 
All  and  Varuna,  are  identified  or  blended  in  thought.^  Only 
slowly  are  these  concepts  differentiated  and  the  immutable  order 
of  nature  becomes  looked  upon  as  dhama,  or  a  holy  ordinance 
established  by  Varuna,  who  now  appears  as  a  protecting  and 
creative  spirit. 

Dhama  thus  forms  a  means  of  transition  to  the  second  juridical 
phase,  that  of  dharnia,  or  divine  law,  corresponding  to  the  Greek 
themis  and  the  Latin  fas.^  In  the  dharma  period,  law  is  regarded 
as  inspired  by  the  gods,  whose  earthly  agent,  the  priest  or  hero- 
king,  is  intrusted  with  its  application  ;  and  in  it  the  rules  governing 
civil  and  public  conduct,  according  to  modern  conceptions,  are 
not  distinguished  from  those  relating  to  manners,  moralit}^  or 
religion.  When  history  dawns,  our  early  Aryan  ancestors  had 
already  entered  the  dharma  phase  of  evolution ;  and  even  now  the 
Hindus  have  scarcely  gained  the  third  phase,  prevailing  in  the 
civilized  West,  in  which  the  element  of  "civil  law"  is  separate 
from  all  other  ingredients.^ 

Of  the  family  relations  of  our  primitive  ancestors  in  the  rita 
period  we  know  little,  except  through  inference  or  analogy.  The 
so-called  "natural  forms"  of  marriage  by  purchase  and  capture 
were  doubtless  practiced,  but  probably  not  exclusively ;  and  these 
customs  were  handed  down  to  the  second  period,  though  they  were 
modified  to  bring  them  into  harmony  with  the  higher  ethical  and 

1  The  riia-conception  is  well  expressed  by  Dr.  Botsford:  "This  man- 
kind learned  from  the  revolution  of  sun  and  stars,  from  the  succession 
of  the  seasons,  from  the  unchanging  movements  of  nature.  The  concep- 
tion thus  gained  was  transferred  to  human  modes  of  activity.  The  sexes 
in  marriage  were  subject  to  the  naturalis  ratio,  as  well  as  the  continuance 
of  the  race  through  successive  generations.  The  relation  of  parents  to 
children  with  their  reciprocal  obligations  and  privileges  —  the  protec- 
tion and  support  which  the  father,  as  the  stronger,  offered,  the  kind  care 
of  the  mother  for  her  infants,  the  reverence  and  affection  with  which  the 
children  requited  their  services,  the  love  of  youth  and  maiden,  leading 
to  marriage  —  all  these  rested,  in  the  rita  period,  on  the  one  foundation 
of  natural  law."  —  "Athenian  Constitution,"  29,  30. 

2  The  discussion  of  the  two  general  phases  of  rita  and  dharma,  with 
their  transitional  stages,  constitutes  one  of  the  most  valuable  parts  of 
LeisVs  contribution  to  comparative  jurisprudence:  "Alt-arisches  Jus 
Gentium,"  3,  111  ff.,  132,  133,  174  ff.,  606;  " Graeco-italische  Rechts- 
geschiehte,"  175-285.  Cf.  Botsford,  op.  cit.,  24,  25,  26  ff.,  for  an  excellent 
account;  on  the  Roman  stages  see  Muirhead,  "Private  Law  of  Rome," 
14-23;  and  for  the  Greek  themis  and  the  themistes  of  the  hero-kings 
consult  Maine,  "Ancient  Law,"  chap.  i. 

3  For  a  definition  of  dharma  see  Bernhoft,  "Ueber  die  Grundlagen  der 
Rechtsentwicklung  bei  den  indogermanischen  Volkern,"  "ZVR.,"  II.  266 
ff.,  261  ff. 


Chap.  X.]  THE   PATRIARCHAL  THEORY  209 

social  ideas  which  had  then  gained  predominance.^  Whether  or 
not  the  absolute  power  of  the  father  and  the  strict  rule  of  agnation 
prevailed  it  would  be  as  difficult  to  affirm  as  to  deny.^  In  the 
dharma  period  the  ancient  rita  conception  of  marriage  as  an  ordi- 
nance of  nature,  whose  real  purpose  is  to  provide  posterity,  is  still 
retained ;  but  it  gains  a  social  character.^  The  central  principle 
of  the  Aryan  household  is  the  Hestia- Vesta  cult,  or  the  worship  of 
the  sacred  hearth.  To  gain  the  protection  of  the  ancestral  gods 
the  hearth-fire  must  be  kept  always  burning ;  and  the  care  of  the 
family  sacra  is  the  special  function  of  the  house-father,  who  is  lord 
and  priest  of  the  family.  But  the  house-mother  holds  a  worthy 
position  in  the  domestic  worship.  From  the  first  kindling  of  the 
hearth-fire  at  the  nuptials,  she  appears  as  co-priestess  and  helper 
of  her  husband  in  the  sacred  rites.  The  whole  life-partnership 
of  the  wedded  pair  is  shaped  and  dominated  by  lofty  religious 
motives.  The  Aryan  housewife  is  not  the  chattel  of  her  hus- 
band ;  she  is  a  free  woman  and  shares  in  his  highest  sacred  func- 
tions. The  primary  purpose  of  the  union  is  the  birth  of  a  legitimate 
son  to  perpetuate  the  paternal  line  and  to  foster  the  ancestral  cult.^ 
So  paramount  is  this  motive  that,  in  case  no  son  is  born  in  wedlock, 
resort  may  be  had  to  adoption,  or  to  analogous  expedients  for  the 
fictitious  extension  of  fatherhood.  For  among  the  Aryans,  as 
Maine  suggests,  the  fiction  of  adoption  is  of  the  highest  legal 
importance ;    and,  indeed,  very  widely  among  the  races  of  man- 

1  Leist,  " Alt-arisehes  Jus  Gentium,"  122  ff.,  125-33. 

-  Bofsford,  "Athenian  Constitution."  10  ff.,  21  ff.,  25  ff.,  divides  the 
rita  period  into  two  stages:  that  of  the  "primitive  Aryan  household," 
and  that  of  the  "earlj^  Aryan  household,"  and  thinks  that  the  latter  stage 
is  represented  by  the  house-communities  of  the  southern  Slavs ;  but  this 
may  be  doubted.  Dr.  Botsford  favors  the  existence  of  agnation  and  the 
absolute  power  of  the  father  in  the  rita  period  ;  and  believes  that  the  liberal 
tendencies,  presently  to  be  pointed  out,  are  a  development  of  the  dharma 
period,  beginning  before  the  separation  (24-26).  On  agnation  and  the 
power  of  the  early  Aryan  house-fathers  see  Sckradcr,  "Spraehvergleichung 
und  Urgeschichte,"  386  ff. ;  Zimmer,  "  Altindisehes  Leben,"  319  ff., 
326  ff. ;  Delhruck,  "Die  indogermanischen  Verwandtschaftsnamen,"  382, 
586-88.  543,  544  ;  JoUij,  "Ueber  die  reehtliche  Stellung,"  etc.,  4  ff.,  20-22  ; 
"Hindu  Law  of  Partition,"  76  ff. 

'  Leist,  op.  cit.,  80. 

*  On  ancestor- worship,  in  connection  with  the  literature  already  cited, 
p.  13,  note  4,  see  Leist,  "Graeeo-italische  Rechtsgeschichte,"  7  ff.,  121  ff. ; 
"Alt-arisehes  Jus  Gentium,"  59-118;  Zimmer,  "Altindisehes  Leben," 
318 ;  Schneider,  "Die  Naturvolker,"  I,  202  ff.,  II,  64  f.,  75,  76.  108,  126  f., 
255  ff.,  369;  Kohler,  "Indisches  Ehe-  und  Familienrecht,"  "ZVR.,"  Ill, 
408  ff. ;  "Studien  iiber  kiinstliche  Verwandtschaft,"  ibid.,  V,  423-25; 
also  for  the  Papuas,  ibid.,  VII,  373.  For  the  influence  of  ancestor-worship 
among  the  Slavs  see  Kovalewsky,  "Mod.  Customs  and  Anc.  Laws  of  Rus- 
sia," 33  ff. ;  among  the  American  aborigines,  Peei,  "Ethnographic  Reli- 
gions and  Ancestor- Worship,"  ^'Am.  Antiquarian,"  XV,  230-45,  and 
"Personal  Divinities  and  Culture  Heroes,"  ibid.,  348-72. 


210  PERSONS  [Part  II. 

kind  it  has  served  a  useful  purpose  in  social  progress.^  Here  also 
the  Aryan  wife  appears  as  co-priestess  with  her  husband.  Each 
is  regarded  as  having  a  share  in  the  begetting  of  the  child,  and  they 
unite  in  giving  the  son  in  adoption  to  another  household.-  Ac- 
cordingly the  wife  is  not  the  mere  chattel  of  her  husband,  who 
owns  the  children  by  virtue  of  his  proprietorship  in  the  mother.^ 
The  house-father  appears  in  the  sacred  books  as  lord  of  the  wife, 
who  owes  him  reverence  and  obedience ;  yet  she  is  not  reduced  to 
patriarchal  slavery.  With  the  husband  she  exercises  joint  control 
over  the  sons ;  and  these  are  released  entirely  from  parental 
authority  when  they  marry  and  establish  new  households.^  The 
male  line  takes  legal  precedence ;  but  the  maternal  kindred  are 
clearly  recognized  in  a  way  wholly  inconsistent  with  strict  agna- 
tion.^ According  to  the  primitive  Indie  conception  the  wife  is 
regarded  as  incapable  of  property.  Neither  the  widow  nor  the 
daughters  could  inherit,  the  estate  passing  to  the  sons  as  in  theory 

^McLennan,  "Patriarchal  Theory,"  10-14,  275  ff.,  282,  284,  294 
criticises  Maine's  theory  of  adoption.  Kohler's  investigations  show  that 
adoption,  artiiieial  brotherhood,  milk- kinship,  and  like  institutions  have 
widely  prevailed  and  rendered  important  service.  Adoption,  he  holds, 
may  arise  in  different  motives ;  sometimes  being  due  to  sexual  commu- 
nism, when  it  is  a  means  of  assigning  the  children  to  particular  fathers ; 
but  very  generally  arising  in  the  desire  for  descendants  to  perpetuate  the 
family-worship  :  ^' Studien  iiber  die  klinstliche  Verwandtschaft,"  "ZVR.," 
V,  415-40 ;  see  also  for  much  important  matter  his  various  other  writ- 
ings in  "ZVR.,"  Ill,  408-24,  393  ff.  (India);  VI,  190  (Chins),  345  (Indian 
Archipelago),  377-79  (China),  403  (Korea)  ;  VII, 218  ff.  (Punjab) ;  VIII, 
100  (Rajputs),  109-12  (Dekkan),  243,  244  (Arabia).  See  also  Post, 
"Familienrecht,"  25-42,  for  an  interesting  account ;  also  Maine,  "Hindu 
Law  and  Usage,"  60  ff.,  77,  99-207;  Leist,  " Alt-arisches  Jus  Gentium," 
103  ff.,  115,  606;  Tornauw,  "Das  Erbrecht  nach  den  Verordnungen  des 
Islams,"  "ZVR.,"  V,  151;  Friedrichs,  " Familienstuf en  xmd  Eheformen," 
ibid.,  X,  237-45;  Starcke,  "Primitive  Family,"  146,  233;  Hue,  ^'Chinese 
Empire,"  II,  226. 

2  Leist,  op.  cit.,  103,  115,  504  ff.  On  the  position  of  the  house-mother 
cf.  Hearn,  "Aryan  Household,"  86-91. 

3  Leist,  op.  cit.,  122,  123,  126  ff.,  successfully  combats  the  theory  of 
Kohler  ("Indisehes  Ehe-  und  Familiem-echt,"  "ZVR.,"  Ill,  394),  who  de- 
clares that  it  is  a  cardinal  principle  of  Indo-Germanic  legal  evolution 
that  "die  Vaterschaft  Veruht  auf  dem  Rechte  des  Mannes  am  Weibe, 
Icraft  dessen  dem  Hausvater  das  Kind  des  Weibes  zukomme,  ebenso  wie 
dem  Eigenthtimer  des  Peldes  die  Frucht."  The  same  view  is  expressed 
by  Kohler  in  "  Krit.  Vjsclir,"  N.  F.,  IV,  17,  18;  and  in  "Vorislamitisches 
Recht,"  "ZVR.,"  VIII,  242.  Cf.  Unger,  "Die  Ehe,"  11,77;  Lippert, 
"Gesehichte  der  Familie,"  95  ff.,  99,  158. 

*  Although  the  married  son  possessed  a  hearth  and  was  a  free  member 
of  the  gens,  "his  house  did  not  become  fully  independent  in  religious  and 
property  matters  till  the  death  of  the  father  and  the  final  division  of  the 
property."  —  Botsford,  "Athenian  Constitution,"  27,  and  the  sources 
there  cited.  Cf.  Zimmer,  "Altindisches  Leben,"  326  ff. ;  Leist,  "Alt- 
arisches  Jus  Gentium,"  124. 

^McLennan,  "Patriarchal  Theory,"  chaps,  xvi,  xvii;  Leist,  op.  cit., 
124,  504  ff. 


Chap.  X.]  THE    PATRIARCHAL   THEORY  211 

a  means  of  providing  for  the  sacra  of  the  deceased  house-father. 
Still  the  bride  possessed  her  personal  belongings  —  her  couch, 
clothing,  and  ornaments ;  and  from  this  germ  gradually  arose, 
beginning  even  in  remote  antiquity,  her  existing  rights  of  property 
and  inheritance.^  In  short,  the  old  Aryan  household  reveals  but 
the  elements  of  agnation  and  the  potestas  as  they  appear  in  the 
Roman  law." 

This  conclusion  is  confirmed  by  the  customs  of  the  Aryan  peoples 
after  the  separation.  Among  the  Hellenes  at  the  first  dawn  of 
history  the  family  appears  as  a  member  of  the  gens,  which  is  held 
together  usually  by  the  ties  of  blood-relationship.  The  house- 
father is  lord  or  monarch  of  the  family.  But  his  authority  is 
tempered  in  various  ways.  Originally,  as  among  the  primitive 
Aryans,  he  may  have  exercised  the  power  of  life  and  death  over  his 
children  ;  but  in  no  case  could  he  "put  a  child  to  death  witiiout  the 
consent  of  the  collective  ancestors,"  or  near  kindred.^  By  the 
Aryans  the  jm5  vitae  necisque  was  never  looked  upon  as  an  arbitrary 
right  of  destruction,  but  merely  as  a  means  of  domestic  discipline.^ 
The  Greek  father  might  sell  his  minor  sons  and  unmarried  daugh- 
ters ;  but  "  it  appears  that,  even  here,  merely  the  labor  of  the  youth, 

'  Leist,  op.  cit.,  496-508;  Kohler,  "Indisehes  Ehe-  und  Familienrecht," 
"ZVR.,"  Ill,  424ff. 

-Leist,  " Graeeo-italische  Reehtsgeschichte,"  95,  96.  Lack  of  space 
prevents  any  attempt  at  a  detailed  discussion  of  the  old  Aryan  or  Indie 
family  and  matrimonial  law ;  a  general  reference  must  suffice  :  Leist, 
"  Alt-arisches  Jus  Gentium,"  59  ff.,  496  ff. ;  "  Graeco-italiselie  Reehts- 
geschichte," 7  &.,  57  ff.,  pasaim;  Schrader,  "  Sprachvergleichung  und  Urge- 
sehichte,"  379-95  ;  Zimmer,  "  Altindisches  Leben,"  305-36  ;  Jolly,  "  Recht- 
liche  SteUung,"  1  ff. ;  idcvi,  "Hindu  Law  of  Partition,"  70  ff . ;  Kohler, 
"Indisehes  Ehe- und  Familienrecht,"  "ZVR.,"  111,342-442  ;  andhisvarious 
articles,  ibid.,  VI,  344-46  (Indian  Archipelago  and  Caroline  Islands)  ; 
VII,  201-39  (Punjab) ;  VIII,  89-147,  262-73  (Indian  customarv  law) ; 
IX,  323-36  (Bengal) ;  X,  66-134  (Bombay) ;  XI,  163-74  (Indian  North- 
west Provinces) ;  Botsford,  "Athenian  Constitution,"  2-67  (excellent) ; 
Wake,  "Marriage  and  Kinship,"  159  ff.,  355  ff.,  index;  Bernhoj't,  "Altin- 
disches Familienorganisation,"  "ZVR.,"  IX,  1-45;  McLeyinan,  "Patri- 
archal Theory,"  50  ff.,  96  ff.,  especially  the  chapters  on  "sonship  among 
the  Hindoos,"  266-339,  combating  the  view  of  Maine,  "Earlv  Law  and 
Custom,"  78-121,  232  ff. ;  "Early  Hist,  of  Inst.,"  116-18,  310  ff. ;  and 
Alayne,  "Hindu  Law  and  Usage,"  50  ff..  60  ff.,  passim;  Starcke,  "Primi- 
tive Family,"  100  ff. ;  Letourneau,  "L'evolution  du  mariage,"  index  ; 
Hearn,  "Aryan  Household";  linger,  "Die  Ehe,"  21-27;  Bader,"  La. 
femme  dans  I'lnde  antique,"  39  ff . ;  Jaeolliof,  '''La  femme  dans  I'lnde,"  7 ff. 

^Botsford,  "Athenian  Constitution,"  50;  Leist,  "Graeeo-italische 
Reehtsgeschichte,"  59  ff.  Westermarck,  "Human  Marriage."  230,  justly 
observes  that  the  power  of  the  father  among  the  Greeks,  Germans,  and 
Celts,  "to  expose  his  children  when  they  were  very  young  and  to  sell  his 
marriageable  daughters,  does  not  imply  the  possession  of  a  sovereignty 
like  that  which  the  Roman  house-father  exercised  over  his  descendants 
at  all  ages." 

*  Leist,  op.  cit.,  60,  and  59  ff.,  for  his  discussion  of  the  Aryan  custom  of 
exposing  new-born  childi-en. 


212  PERSONS  [Part  II. 

and  not  the  person  itself  was  disposed  of  by  sale,"  and  the  custom 
was  controlled  by  the  usage  of  the  gens.^  The  wife,  as  among  the 
Hindus,  holds  a  dignified  position  in  the  household.  She  is  her 
husband's  partner  in  the  domestic  economy  and  the  sacred  rites. 
Equally  with  him  she  is  "the  cause  of  the  son's  existence,"  and  in 
consequence  exercises  over  him  conjointly  with  the  father  the 
powers  of  sale  and  life  and  death."  Thus  Hellenic  custom  pre- 
serves the  essential  element  of  the  Aryan  paternal  authority,  which 
signifies  a  protecting,  not  an  arbitrary  or  ruthlessly  destructive, 
power.  Among  the  historic  Greeks  the  agnatic  principle  finds 
expression  especially  in  the  right  of  guardianship,  which  is  trans- 
mitted in  the  paternal  line.  Such  is  the  judgment  of  Leist,  whose 
masterly  account  of  the  development  of  the  Aryan  agnatic  con- 
ception proves  that  here  as  elsewhere  the  Roman  and  the  Greek 
stood  upon  common  ground.^  The  point  of  divergence  is  the  life- 
long continuance  of  the  Roman  potestas;  whereas  in  Hellas  the 
son  was  emancipated  at  maturity.^ 

Examination  of  the  customs  of  the  Celts,^  the  Slavonians,^  and 
ancient  Germans  leads  to  a  like  result.  Accordingly  we  are 
forced  to  admit  the  accuracy  of  Gaius's  conclusion.     Writing  in  the 

1  Botsford,  op.  cit.,  51 ;  Fustel  de  Coulanges,  "Ancient  City,"  118,  120, 
notes;    Plutarch,  "Solon,"  13. 

2  Botsford,  op.  cit.,  52;    Leist,  op.  cit.,  57,  58,  64,  11  ff. 

3  Leist,  57-102. 

■*  In  the  post-Homeric  age  agnation  did  not  exist ;  see  Botsford,  op.  cit., 
73.  In  general  on  the  Greek  family  see  Hruza,  "Ehebegriindung  naeh 
attischem  Rechte,"  8  ff. ;  McLennan,  "Studies,"  I,  121-23,  especially 
the  essay  on  "Kinship  in  Ancient  Greece,"  ibid.,  195-246  (favoring  the 
maternal  system) ;  Botsford,  op.  cit.,  chaps,  i,  ii,  iii,  supporting  the  patri- 
archal theor3' ;  but  Dr.  Botsford's  patriarchal  family  is  not  that  of  Sir 
Henrj'  Maine  ;  Lasaulx,  "Zxir  Geseh.  u.  Philos.  der  Ehe  bei  den  Griechen," 
3  ff. ;  Dargun,  "Mutterrecht  und  Raubehe,"  2,  3,  14;  Giravd-Tenlon, 
"Les  origines,"  etc.,  286-301;  Wake,  ^'Marriage  and  Kinship,"  24  ff., 
355  ff.,  366  ff.,  who  criticises  McLennan's  view  in  detail  for  the  Aryan 
peoples;  ivoraieu'sA-ty,  "Tableau,"  35,  36;  Bernhoft,  "Das  Gezetz  von 
Gortyn,"  "ZVR.,"  VI,  281-304,  430-40;  and  his  "Ehe-  und  Erbrecht  der 
griechischen  Heroenzeit,"  ibid.,  XI,  326-64,  both  articles  being  of  great 
value  ;  Kohler,  "Die  lonsage  und  Vaterrecht,"  ibid.,  V,  407-14,  who  proves 
the  existence  of  "judicial"  fatherhood  ;  Westermarck,  "Human  Marriage," 
232,  233;  linger,  "Die  Ehe,"  52-65;  Bader,  "La  femme  grecque,"  I, 
41  ff. ;  II,  1  ff.  See  also  Ilearn,  "Aryan  Household,"  and  Fustel  de  Cou- 
langes, "Ancient  Citv,"  for  much  valuable  matter. 

6  McLenna7i,  "Patriarchal  Theory,"  120-31 ;  "Studies,"  I,  68  ff.,  118; 
Giraxid-Teidon,  "Les  origines,"  etc.,  329-32;  Kovalewsky,  "Tableau," 
31,  32;    Maine,  "Early  Hist,  of  Inst.,"  216  ff.,  passim. 

^  The  South  Slavonian  house  community  is  an  earlj'  institution ;  see 
Krauss,  "Sitte  und  Brauch  der  Siidslaven,"  2  ff.,  64-128;  Botsford,  op. 
cit.,  12-21 ;  Giraud-Tculon,  op.  cit.,  340,  341 ;  McLennan,  op.  cit.,  71-119 ; 
Maine,  "Ancient  Law,"  118;  "Early  Law  and  Custom,"  232-82.  But 
it  is  not  primitive.  Kovalewsky,  "Mod.  Customs  and  Anc.  Laws  of 
Russia,"  chaps,  i,  ii,  finds  many  sur\avals,  as  he  believes,  of  an  earlier 
maternal  system  of  kinship  and  succession. 


Chap.  X.]  THE    PATRIARCHAL  THEORY  213 

time  of  the  Antonines,  he  declares  his  behef  that  the  patria  potestas 
is  peciiHarly  a  Roman  institution.  Only  among  the  Asiatic 
Galatae  had  he  observed  a  similar  authority  exercised  by  the  father 
over  his  children.^  Instead  of  existing  "almost  everywhere,"  often 
preserving  as  in  a  mold  the  imprint  of  the  paternal  power  which  it 
has  outlived  and  upon  which  it  is  thought  always  to  depend,  among 
Aryan  peoples  agnation  is  found  together  with  the  potestas  only 
in  one  instance,  that  of  the  Roman  law ;  and  even  in  this  case  it 
was  virtually  the  first  to  expire.^  For,  as  is  well  known  to  the 
student  of  Roman  jurisprudence,  strict  agnation,  as  determining 
right  of  succession,  disappeared  under  the  influence  of  the  edict  and 
imperial  statutes  long  before  the  last  vestige  of  the  real  patria 
potestas  was  swept  away  by  the  legislation  of  Justinian.^ 

Furthermore,  in  addition  to  the  historical  difficulty,  there  is 
another  strong  reason  for  doubting  the  dependence  of  agnation 
upon  patria  potestas:  the  inconsistency  of  the  latter  in  its  effects 
upon  kinship.  If  the  descendants  of  married  women  are  excluded 
from  relationship,  solely  on  the  ground  that  they  belong  to  another 
potestas,  why,  for  the  same  reason,  should  not  the  children  of  men, 
say  of  brothers  sui  juris, '^  be  likewise  mutually  excluded  ?  Plainly 
some  more  satisfactory  explanation  of  this  remarkable  discrimi- 
nation between  the  sexes  must  exist.  Such  an  explanation 
^McLennan  finds  in  exogamy,  or  the  custom  which  forbids  marriage 
between  persons  of  the  same  group  of  acknowledged  kindred.^ 
It  seems  probable  that  in  early  times  the  patrician  family  was 
coextensive  with  the  gens.  Agnatio  and  gentilitas  were  equivalent 
expressions.®  During  the  historical  period,  at  any  rate,  gentilitas 
is  traced  through  the  male  line  ;  and  it  is  not  impossible  that  orig- 
inally intermarriage  was  forbidden    between    those  bearing  the 

1  Gains,  I,  55,  Poste,  61. 

2  Such  is  the  view  of  McLennan,  "Patriarchal  Theory,"  136-40,  181  ff., 
205  ff.,  214,  260-62,  where  Maine's  theory  of  agnation  is  criticised. 

^  "The  last  vestiges  of  the  two  disappeared  from  the  law  together. 
But,  in  fact,  agnation  went  first.  The  paternal  powers  were  susceptible 
of  abridgment  and  restriction  in  various  ways  short  of  extinction.  The 
wife  might  become  free  from  them ;  the  children  also ;  and  yet  they 
might  remain  for  the  slaves.  And  it  was  thus  gradually  that  ihey  per- 
ished. But  agnation  is  perfect,  or  it  ceases  to  be  agnation.  And  the 
moment  the  ties  of  blood  through  women  received  ci\'il  effects  agnation 
was  no  more."  —  "Patriarchal  Theory,"  182.  On  the  decay  of  agnation 
and  -patria  potestas  see  Sohm,  "Institutes,"  357,  358,  389-93,  438-47; 
Puchta,  "Institutionen,"  II,  18,  384  ff.,  431  ff.,  457  ff. ;  Muirhead,  "Intro- 
duction to  the  Private  Law  of  Rome,"  422  ff.,  343-49  ;  Maine,  "Ancient 
Law,"  chap,  v;    Morey,  "Roman  Law,"  78,  129,  150,  240-43,  248. 

^  McLenyian,  "Patriarchal  Theory,"  190.  ^  Ibid.,  194.  195. 

^  Ibid.,  204-14.  Cf.  Muirhead,  "Introduction  to  the  Private  Law  of 
Rome,"  43. 


214  PERSONS  [Part  II. 

same  gentile  name.^  In  that  case,  agnation  appears  as  the  natural 
result  of  the  gentile  rule  of  exogamy,  retained,  after  the  weakening 
of  the  gens,  for  the  regulation  of  succession  within  the  family. 
Exogamy,  however,  does  not  necessarily  imply  the  patria  yotestas, 
but  is  found  more  frequently  perhaps  with  the  maternal  than  with 
the  paternal  system  of  kinship.^  In  fact,  for  the  Romans  and 
kindred  Italic  tribes,  considerable  evidence  has  been  collected  by 
various  writers  pointing,  as  they  believe,  to  an  early  transition  from 
the  maternal  to  the  cognatic  or  the  agnatic  system.^  While  this 
conclusion  may  be  rejected,  it  must  nevertheless  be  admitted 
that  criticism  of  the  patriarchal  theory  has  been  very  successful 
in  its  general  results.  It  appears  to  have  established  bej^ond  ques- 
tion the  complex  and  highly  artificial  character  of  the  Roman 
family.^  So  far  from  being  the  type  of  early  social  organization, 
it  is  seen  to  be  relatively  modern  and  ill  fitted  to  the  condition  of 
primitive  men. 

1  Plutarch,  "Roman  Questions,"  VI,  tells  us  that  "in  early  times  the 
prohibition  of  marriage  extended  as  far  as  the  tie  of  blood ;  and,  if  this  be 
received,  it  involves  —  since  the  gentiles  considered  themselves  to  be  of 
the  same  blood  —  that  there  could  not  be  marriage  between  persons  of 
the  same  gens."  —  McLennan,  op.  cit.,  206,  207. 

2  Leist,  "  Graeco-italische  Rechtsgesehichte,"  59,  96,  also  denies  (against 
Marquardt,  "Privatleben,"  I,  22,  29)  that  the  distinctive  feature  of  the 
Roman  family  is  dependent  on  the  patriarchal  authority,  since  the  ele- 
ments of  agnation  and  paternal  power  are  Aryan.  Bcrnhoft,  "German- 
ische  und  moderne  Rechtsideen  im  rezipirten  rom.  Recht,"  "  ZVR.,"  IV, 
234,  holds  that  Roman  agnation  does  not  depend  upon  blood-relation- 
ship, but  upon  power;  and  this"  was  an  Aryan  characteristic;  idem, 
"Rom.  Konigszeit,"  69  &.,  94,  201.  McLennan's  hypothesis  is  plausible, 
though  not  strongly  supported  by  proof.  Cf.  Starcke,  "Primitive  Family," 
101;    Wake,  "Marriage  and  Kinship,"  384,  385. 

^  Such  are'  the  isolated  facts  comprised  in  the  early  annals  which  seem 
to  imply  acknowledged  kinship  in  the  female  line,  even  precedence  of  the 
latter ;  the  fact  that  the  status  of  slaves,  illegitimate  children,  and  the 
children  of  concubines  was  determined  by  the  condition  of  the  mother; 
the  effects  of  marriage  by  usus;  the  supposed  evidences  of  former  wife- 
capture  and  wife-purchase,  marking  the  transition  to  the  agnatic  system ; 
the  instances  of  wife-lending,  as  by  the  elder  Cato ;  and  especially  the 
plebeian  element ;  for  cognation,  not  agnation,  prevailed  among  the  ple- 
beians, and  possibly  among  them  kinship  was  at  first  counted  only  through 
the  mother;  see  Dargun,  "Mutterrecht  und  Raubehe,"  9-13,  14  ■  "Mut- 
terrecht  und  Vaterrecht,"  115;  Bernhofl,  "Zur  Geschiehtedeseuropaischen 
Familienrechts,"  "ZVR.,"  VIII,  197-201;  "Germanische  und  moderne 
Rechtsideen  im  rezipirten  rom.  Recht,"  ibid.,  IV,  227  ff. ;  "Staat  und 
Recht  der  rom.  Konigszeit,"  192,  202-7;  Giraxid-Teulon,  "Les  origines 
du  mariage,"  408-26  ;  Sohm,  "Institutes,"  360,  361,  notes  ;  Karlowa,  ^'Die 
Formen  der  rom.  Ehe,"  1  ff. ;  McLennan,  '''Patriarchal  Theorv,"  194  ff., 
205  ff.,  259  ff. 

^^'Die  Ehe  des  romischen  Civilreehts  (justum  matrimonium)  war 
eine  formgebundene,  durch  und  dureh  kiinstliche  Institution."  —  Dargun, 
"Mutterrecht  und  Raubehe,"  10.  Cf.  Bernhoft,  "Staat  und  Recht  der 
rom.  Konigszeit,"  196  ff. 


Chapter    XI 

TOTEMISM    AND    EXOGAMY 

Section  1 
EXOGAMY  AS   A   SURVIVAL   OF   GROUP  MARRIAGE  i 

1,  As  a  survival  of  the  system  of  group-marriage,  the  principle 
remained,  that  marriage  should  not  take  place  in  the  same  group, 
but  in  another.     This  was  accomplished  as  follows  : 

2.  A  member  of  the  group  A  was  obliged  to  marry  a  member  of 
the  group  B ;  this  is  called  exogamy ;  and  a  distinction  is  made 
between  positive  and  negative  exogamy.  In  the  former,  a  certain 
group  is  designated,  from  which  the  man  must  choose  his  wife ; 
in  the  latter  he  may  not  marry  in  his  own  group,  but  he  may  marry 
a  woman  out  of  any  other.  Wlien  the  group  system  and  totemism 
decayed,  the  principle  was  retained  that  no  one  should  marry  one 
of  his  immediate  kin,  and  a  certain  remoteness  of  relationship  had 
to  exist  before  a  marriage  was  permitted.  This  system  has  trans- 
planted itself  more  or  less  into  civilized  ages ;  in  such  a  manner, 
however,  that  the  group  of  persons  between  whom  marriage  was 
forbidden  has  shrunk  more  and  more ;  so  that  the  circle  of  those 
who  might  marry  each  other  has  grown  ever  wider.  But,  to  a 
certain  extent,  the  system  of  exogamy  has  remained,  especially  in 
this,  that  marriage  between  brothers  and  sisters,  between  parents 
and  children,  and  between  certain  degrees  of  relationship  in  law,  is 
forbidden.  This  is  not  entirely  without  reasonable  foundation. 
One  reason  is  of  hygienic  nature  :  it  is  assumed  that  there  is  reason 
to  fear  that  marriage  between  immediate  relatives  leads  to  degener- 
ation or  to  sterility ;  certainly  physical  and  mental  family  defects 
should  not  be  accentuated  by  such  marriages,  but  should  be  effaced 
by  marriage  with  members  of  other  families.  A  second  reason  is 
that  different  families  should  form  some  connection  with  one  an- 

'  [Reprinted,  by  permission,  from  Josef  Kohler,  ''  Philosophy  of  Law," 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

215 


216  PERSONS  [Part  II. 

other,  so  that  the  structure  of  the  State  may  be  firm  and  close,  and 
not  shaken  by  friction  between  the  various  ckms  or  famiUes  that 
compose  it ;  and  there  is  no  firmer  tie  than  that  formed  by  mar- 
riages between  different  famihes.  A  third  reason  is  ethical  in  char- 
acter. The  development  of  sexual  passions  within  the  immediate 
family  circle  must  be  prevented,  and  this  can  be  best  accomplished 
by  making  sexual  relationships  in  the  family  itself  detested,  so  that 
sexual  life  between  members  of  the  same  family  may  be  inconceiv- 
able. In  this  way,  culture  has  artificially  created  a  horror  naturalis 
—  a  phenomenon  of  frequent  appearance  ;  culture  creates  a  second 
nature,  of  which,  however,  the  philosophy  of  law  in  earlier  times 
had  not  an  inkling. 

Section  2 

ORIGIN   OF   EXOGAMY   AND   TOTEMISM  i 

Exogamy  is  manifestly  the  greatest  and  most  far-reaching 
of  taboos.  By  this  taboo  every  one  is  affected.  Something 
is  forbidden,  —  a  taboo  is  always  prohibitive  of  something,  — 
and,  if  we  want  to  understand  why  anything  is  forbidden,  we 
ask  "  to  whose  interest  is  it  to  prohibit  this  or  that ;  cui  j^rodest  ?  " 
Usually  the  persons  who  reap  advantage  by  a  taboo  are  the  seniors 
of  the  community,  the  makers  of  customary  law.  Were  any  seniors 
ever  interested  in  prohibiting  all  sexual  unions  (except  their  own) 
within  any  given  circle  ?    I  think  there  were  such  seniors  ! 

As  to  the  origin  of  Exogamy,  I  conceive,  (following  Mr.  Atkinson 
in  his  "  Primal  Law  "),  that  man  dwelt  originally,  as  in  Darwin's 
opinion,  in  small  familj^  groups,  the  Sires  in  each  case  expelling 
the  young  males  when  they  were  arriving  at  puberty.  The  Sires 
are  the  interested  seniors  for  whom  we  are  looking!  "The 
younger  males,  being  thus  expelled  and  wandering  about,  would, 
when  at  last  successful  in  finding  a  partner,  prevent  too  close  in- 
terbreeding within  the  limits  of  the  same  family,"  says  Darwin.- 
The  sire  among  horses,  stags,  (and  gorillas,  according  to  Darwin), 
thus  expels  the  young  males  through  no  idea  of  "incest"  in  unions 
of  brother  and  sister,  mother  and  son,  through  no  aversion  to  unions 
of  persons  closely  akin  by  blood,  but  from  animal  jealousy.  Dar- 
win supposed  that  man  did  not  cease  to  be  fiercely  jealous  as  he 

1  [By  (the  late)  Andrew  Lang.  Reprinted,  by  permission  of  Mrs. 
Andrew  Lang  and  the  Folk-Lore  Society,  from  "Folk-Lore"  (London), 
Vol.  XXIV,  No.  2  (.July  1st,  191.3).  This  is  a  detached  chapter  from  an 
unpublished  manuscript.] 

2  Darwin,  "The  Descent  of  Man"  (2d  ed.),  vol.  ii.,  p.  395. 


I 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  217 

became  human.  The  expulsion  of  young  males  was  a  practical 
enforcement  of  exogamy,  of  marriage  out  of  the  brutal  herd,  out 
of  the  savage  camp. 

As  progress  advanced,  I  conceive  that  the  sire  was  moved, 
(by  the  tears,  perhaps,  of  some  female  mate,  in  Mr.  Atkinson's 
theory,  and  by  a  softening  of  his  own  heart,  now  becoming  hu- 
man), to  let  the  son  of  his  old  age,  his  Benjamin,  remain  in  the 
camp,  so  long  as  he  did  not  interfere  with  any  of  the  females,  but 
found  a  mate  outside  the  group.  The  custom  of  brother  and 
sister  avoidance,  among  tribes  known  to  ]Mr.  Atkinson  in  New 
Caledonia  and  other  isles,  seemed  to  him  a  result  of  this  law. 
Mr.  J.  M.  Robertson  calls  this  idea  "  a  violent  assumption  of  a 
dramatic  reconciliation  effected  by  a  mother  between  father  and 
son  on  the  basis  of  exogamy  for  the  latter :  we  are  unable  to  see 
how  the  happy  solution  was  repeated  all  through  the  species."  ^ 

Does  not  >\Ir.  Robertson  believe  in  the  blessed  words  Natural 
Selection  and  Survival  of  the  Fittestf  He  appears  to  admit  that 
"early  man,  like  the  gorilla  and  wild  bull"  (and  many  other 
animals)  of  "to-day,  forcibly  expelled  or  slew  his  male  young  when 
they  aroused  his  jealousy."  If  early  man  did  so,  man  not  so  early 
left  off  doing  so,  certainly ;  and  for  that  he  must  have  had  some 
reason,  and  some  early  men  must  have  begun  the  practice  of  per- 
mitting the  young  males  to  remain  in  the  camp  or  fire-circle,  but 
not  to  choose  a  mate  within  it.  They  were  of  milder  mood ;  the 
mothers,  too,  were  growing  more  maternal ;  had  it  not  been  so, 
we  should  all  be  more  brutal  than  we  are  at  this  moment.  Then 
came  in  Natural  Selection.  Groups  which  contained  several  fine 
young  males  would  be  "  the  fittest,"  would  overcome  in  all  en- 
counters groups  with  only  one  male,  perhaps  a  tottering  old  male ; 
and  the  fittest  groups  would  survive.  The  reform  would  be  imi- 
tated by  other  groups  till  "  the  happy  solution  was  repeated  all 
through  the  species." 

Mr.  Atkinson  merely  gave  dramatically,  in  his  remarks  on  the 
mother,  son,  and  sire,  an  example  of  the  way  in  which  advancing 
humanity  might  modify  the  old  brutal  custom. 

]My  theory  is  practically  that  of  ^Ir.  Atkinson.  The  expulsion 
of  the  young  sons  by  the  sire  was  his  unspoken  enforcement  of 
exogamy.  TRe  idea  is  Darwin's,  it  is  not  that  of  an  amateur 
naturalist :  hypnotised  by  no  belief  in  the  promiscuity  of  the 
earliest  men.  With  them,  solitary  and  fierce,  my  theory  of  exog- 
amy begins. 

1  "The  Literary  Guide,"  July,  1910,  p.  102. 


218  PERSONS  [Part  II. 

Mr.  Howitt,  if  I  understand  his  meaning,  thought  that  exogamy 
arose  in  a  society  which,  save  for  exogamy,  was  as  advanced  as 
that  of  an  Australian  tribe  of  to-day.  After  quoting  two  tribal 
legends  of  the  rise  of  exogamy,  (legends  of  an  opposite  sort  are 
ignored),  from  the  .dividing  of  the  tribe  into  phratries,  "with  intent 
to  regulate  the  relations  of  the  sexes,"  Mr.  Howitt  says,  "I  can  see 
very  clearly  how  such  a  social  change  might  be  brought  about. 
.  .  .  Such  a  man,"  (a  voyant,  a  medicine-man),  "if  of  great  re- 
pute in  his  tribe,  might  readily  bring  about  a  social  change,  by 
announcing  to  his  fellow  medicine-men  a  command  received 
from  some  supernatural  being  such  as  Kutchi  of  the  Dieri,  Bunjil  of 
the  Wurunjerri,  or  Daramulun  of  the  Coast  Murring.  If  they 
received  it  favourably,  the  next  step  might  be  to  announce  it  to 
the  assembled  headmen  at  one  of  the  ceremonial  gatherings  as  a 
supernatural  command,  and  this  would  be  accepted  as  true  without 
question  by  the  tribes-people."  ^ 

But  this  theory  postulates  the  modern  organised  tribe,  with  a 
supreme  All-Father,  a  probouleutic  council  of  medicine-men,  a 
Boule  of  headmen,  with  ceremonial  gatherings,  and  tribal  consent. 

To  such  a  tribe,  hitherto  promiscuous,  the  headmen  announce 
that,  by  a  supernatural  command,  they  must  so  arrange  them- 
selves that  no  man  may  marry  his  mother,  nor  any  woman  of  her 
tribal  status,  nor  his  sister,  nor  any  woman  of  her  tribal  status,  nor 
any  woman  in  his  own  division  of  the  tribe.  The  tribe  accept  a 
proposal  so  contrary  to  their  previous  promiscuity.  But  ichy 
Daramulun  issued  this  edict,  if  he  did,  or  why  the  medicine-man 
conceived  such  a  curious  idea,  no  theorist  who  believes  in  this 
legislative  action  can  make  even  a  guess.  A  theory  which  postu- 
lates that,  when  exogamy  arose,  tribes  were  organized  on  the  pres- 
ent model ;  a  theory  which  postulates  a  decree  totally  bereft  of 
any  plausible  motive,  and  conducing  to  no  perceptible  advantage 
to  any  mass  or  class  of  men,  seems  to  me  futile.  It  merely  re-states 
the  facts,  —  there  is  at  present  an  exogamous  division  which  pre- 
vents marriages  of  some  consanguine  and  of  many  more  non- 
consanguine  people,  —  but  why  there  is  such  a  division  Daramidun 
only  knows !  My  theory  answers  the  question,  ciii  honof  "AVho 
has  an  interest  in  enforcing  an  exogamous  decree?"  My  guess, 
adopted  from  the  greatest  of  naturalists,  Mr.  Dartvin,  is  obliged 
to  contradict  the  theory  of  Mr.  Howitt  at  every  point.  I  suppose 
the  "primal  law"  of  the  half-brutal  sire  to  have  persisted  in  local 
groups  longer,  owing  to  the  admission  of  sons  with  their  alien  mates, 
1  "The  Native  Tribes  of  South-East  Australia,"  pp.  89,  90. 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  219 

than  the  harem  of  the  old  sire.  There  was  as  yet  no  organised 
tribe  :  the  groups  preserved  the  ancestral  jealous  hostility.  This 
can  neither  be  proved  nor  disproved,  but  the  hostility  is  the  key- 
stone of  my  arch. 

As  to  primal  hostility  of  groups,  it  is  a  curio.us  fact  that,  in  the 
Banksian  island  of  Mota,  the  two  veve,  (or  intermarrying  phratries) , 
"  in  the  old  days  .  .  .  hated  one  another,  and  even  now  there  is 
a  feeling  of  hostility  between  the  two.  .  .  .  There  are  a  number 
of  customs  of  avoidance  which  receive  their  most  natural  explana- 
tion as  evidence  of  this  old  feeling  between  the  two  divisions."  ^ 
Given  hostility,  to  obtain  wives  from  each  other,  men,  on  my 
theory,  had  recourse  to  robbery. 

1  would  add,  that  if  brothers  and  sisters  were  allowed  to  make 
love  to  each  other,  (and  the  boys  to  their  mother,  which  seems 
hardly  conceivable),  the  family  circle  must,  on  occasion,  have  been 
broken  up  by  murders  and  revenges,  red  revenge  between  sire  and 
son,  brother  and  brother.  No  small  society  could  have  lived  if 
such  amours  were  permitted.  Man  had  thus  good  human  reasons 
for  slaying  such  amorists ;  otherwise  capital  punishment  is  all  but 
unknown  to  savage  law. 

I  next  suppose  the  local  groups  to  have  come  to  distinguish  each 
other  by  names  derived  usually  from  animals,  more  rarely  from 
plants,  for  totem  kins  are  so  distinguished.  For  my  reasons  and  my 
answers  to  objections  I  must  refer  to  my  books,  "  Social  Origins," 
and  "The  Secret  of  the  Totem"  (pp.  114-34).  Of  this  later  book 
I  reprint  what  seems  necessary :  a  few  passages  need  alteration. 

The  establishment  of  totemic  beliefs  and  practices  cannot  have 
been  sudden.  Men  cannot  have,  all  in  a  moment,  conceived  that 
each  group  possessed  a  protective  and  sacred  animal  or  other 
object,  perhaps  of  one  blood  with  themselves  in  explanatory  myths. 
There  must  have  been  dim  beginnings  of  the  belief  (so  surprising 
to  us)  that  each  human  group  had  some  intimate  connection  with 
this,  that,  or  the  other  natural  species,  plants,  or  animals.  We 
must  first  seek  for  a  cause  of  this  belief  in  the  connection  of  human 
groups  with  animals,  the  idea  of  which  connection  must  necessarily 
be  prior  to  the  various  customs  and  rules  founded  on  the  idea. 
]\Ir.  Baldwin  Spencer  remarks, "  What  gave  rise  in  the  first  instance 
to  the  association  of  particular  men  with  particular  animals  and 
plants  it  does  not  seem  possible  to  say."  -    INIr.  Ilowitt  asks,  "  How 

•  W.  H.  R.  Rivers,  "The  Father's  Sister  in  Oceania,"  "Folk-Lore," 
vol.  xxi.,  p.  55.  The  Haida  intermarrying  sets,  according  to  ISIr.  Swan- 
ton,  hate  each  other  bitterly. 

2  "The  Native  Tribes  of  Central  Australia,"  p.  127. 


220  PERSONS  [Pabt  II. 

was  it  that  men  assumed  the  names  of  objects,  which  in  fact  must 
have  been  the  commencement  of  totemismf"  ^  The  answer  may  be 
very  simple.  It  ought  to  be  an  answer  which  takes  for  granted 
no  superstition  as  already  active ;  magic,  for  instance,  need  not 
have  yet  been  developed. 

Manifestly,  if  each  group  woke  to  the  consciousness  that  it  bore 
the  name  of  a  plant  or  animal,  and  did  not  know  how  it  came  to 
bear  that  name,  no  more  was  needed  to  establish,  in  the  savage 
mind,  the  belief  in  an  essential  and  valuable  connection  between 
the  human  group  Emu,  and  the  Emu  species  of  birds,  and  so  on. 
As  Mr.  Howitt  says,  totemism  begins  in  the  bearing  by  human 
groups  of  the  name  of  objects. 

It  is  difficult  to  understand  how  a  fact  so  obvious  as  this,  — 
that  the  totemic  name,  if  the  name  existed,  and  if  its  origin  were 
unknown,  would  come  to  be  taken  by  the  groups  as  implying  a 
mystic  connection  between  all  who  bore  it,  men  or  beasts,  —  can 
have  escaped  the  notice  of  any  one  who  is  acquainted  with  the 
nature  of  savage  thinking,  and  with  its  survivals  into  civilised  ritual 
and  magic.  Mr.  Frazer  has  devoted  forty-two  pages  of  his  "  Golden 
Bough  "  ^  to  the  record  of  examples  of  this  belief  about  names,  in 
various  forms.  He  quotes  Sir  John  Rhys  to  the  effect  that  prob- 
ably "  the  whole  Aryan  family,  believed  at  one  time  not  only  that 
his  name  was  a  part  of  the  man,  but  that  it  was  that  part  of  him 
which  is  termed  the  soul,  the  breath  of  life,  or  whatever  you  may 
choose  to  define  it  as  being."  So  says  Sir  J.  Rhys  in  an  essay  on 
Welsh  Fairies.^  This  opinion  rests  on  philological  analysis  of  the 
Aryan  words  for  "  name,"  and  is  certainly  not  understated.^  But 
if  the  name  is  the  soul  of  its  bearer,  if  his  soul  be  his  essence,  if  he 
and  his  totem  are  of  one  essence  and  name,  then  the  name  and 
the  soul,  and  the  soul  and  the  totem  of  a  man  are  all  one  !  There 
we  have  the  rapport  between  man  and  totemic  animal  for  which 
we  are  seeking.^ 

1  "The  Native  Tribes  of  South-East  Australia,"  p.  153. 

2  2d.  ed.,  vol.  i.,  pp.  404-46. 

3  "Nineteenth  Century,"  vol.  xxx.  (1891),  p.  567. 

*  See  examples  in  "Cupid  and  Psvche,"  in  my  "Custom  and  Myth," 
and  Mr.  Clodd's  "Tom  Tit  Tot,"  pp.'91-3. 

*  In  Mr.  Frazer's  theory  the  origin  of  this  idea  of  rapport  is  the  North 
and  Central  Australian  belief  that  the  essence  of  each  human  being  is 
the  spirit  of  a  primal  being  of  animal  or  vegetable  form,  and  so  totemic, 
which  enters  a  woman  and  is  reincarnated.  To  me  it  seems  that  this 
belief  is  a  theory  constructed  by  men  who  were  already  totemists,  and 
already  animistic,  and  who  asked  themselves,  "Why  have  we  totems? 
Whence  have  we  souls?"  If  I  am  wrong,  why  do  but  two  human  sources 
of  the  many  totem  names  exist? 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  221 

Whether  "  name"  in  any  language  indicates  "  soul"  or  not,  the 
savage  behef  in  the  intimate  and  wonder-working  connection  of 
names  and  things  is  a  well-ascertained  fact.  Now,  as  things  equal 
to  the  same  thing  are  equal  to  each  other,  animals  and  sets  of  men 
having  the  same  name  are,  in  savage  opinion,  mystically  con- 
nected with  each  other.  That  is  now  the  universal  totemic  belief, 
though  it  need  not  have  existed  when  names  were  first  applied  to 
distinguish  things,  and  men,  and  sets  of  men.  Examples  of  the 
belief  will  presently  be  given. 

Thus,  given  a  set  of  local  groups  ^  known  by  the  names  of  Eagle, 
Hawk,  Crow,  Wolf,  Raven,  or  what  not,  the  idea  that  these  groups 
were  intimately  connected  with  the  name-giving  animals  in  each 
case  was,  in  the  long  run,  sure  to  occur  to  the  savage  thinker.  On 
that  assumed  mystical  connection,  implied  in  the  common  name, 
and  suggested  by  the  common  name,  is  laid  the  foundation  of  all 
early  totemic  practice.  For  the  magical  properties  of  the  connec- 
tion between  the  name  and  its  bearer,  the  reader  has  only  to  refer 
to  ^Ir.  Frazer's  assortment  of  examples,  already  cited.  We  here 
give  all  that  are  needed  for  our  purpose. 

In  Australia,  each  individual  Arunta  has  a  secret  name,  aritna 
cliiiringa,  "  never  uttered  except  on  the  most  solemn  occasions," 
"  never  to  be  spoken  in  the  hearing  of  women,  or  of  men,  or  of 
another  group."  To  speak  the  secret  name  in  these  circumstances 
would  be  as  impious  "  as  the  most  flagrant  case  of  sacrilege  amongst 
white  men."  ^ 

The  facts  prove,  I  repeat,  that  to  the  early  mind  names,  and 
the  things  known  by  names,  are  in  a  mystic  and  transcendental 
connection  of  rapport.  Other  Australian  examples  of  the  secrecy 
of  a  man's  name,  and  of  the  power  of  magically  injuring  him  by 
knowledge  of  his  name,  are  given  by  ^Ir.  Howitt,  Brough  Smyth, 
Lumholtz,  Bulmer,  Dawson,  and  others.  It  would  appear  that 
this  superstition  as  to  names  is  later  than  the  first  giving  of  animal 
names  to  totem  groups,  and  that  totem  names  were  not  given  to 
groups  by  the  groups  themselves,  (at  least,  were  not  given  after 

'  I  am  sure  to  be  told  that  I  declared  local  totem  groups  to  be  the  result 
of  reekoning  in  the  male  line,  and  not  primitive,  and  that,  here,  I  make 
the  primitive  animal-named  group  local.  My  reply  is  that  in  this  passage 
I  am  not  speaking  of  totcjn  groups,  but  of  local  groups  bearing  animal  names, 
a  very  different  thing.  A  gi-oup  may  have  borne  an  animal  name  long 
before  it  evolved  totemic  beliefs  about  the  animal,  and  recognised  it  as 
a  totem.  No  group  that  was  not  lofal  could  get  a  name  to  itself  at  this 
earh^  stage  of  the  proceedings.  The  "local  habitation"  precedes  the 
"name." 

2  Spencer  and  Gillen,  "The  Native  Tribes  of  Central  Australia,"  p.  139. 


222  PERSONS  [Part  II. 

the  superstition  about  names  came  in),  for  to  blazon  their  own 
group  names  abroad  would  be  to  give  any  enemy  the  power  of  in- 
juring the  group  by  his  knowledge  of  its  name.  Groups,  had  they 
possessed  the  name-belief,  would  have  carefully  concealed  their 
group  names,  if  they  could.  There  are  a  few  American  cases  in 
which  kins  talk  of  their  totems  by  periphrases,  but  every  one 
knows  their  real  names. 

He  who  knew  a  group's  name  might  make  a  magical  use  of  his 
knowledge  to  injure  the  group.  But  the  group  names  or  kin 
names  being  already  know^n  to  all  concerned  (having  probably 
been  given  from  without),  when  the  full  totemic  belief  arose  it  was 
far  too  late  for  groups  to  conceal  the  totem  names,  as  an  individual 
can  and  does  keep  his  own  private  essential  name  secret.  The 
totem  animal  of  every  group  was  known  to  all  groups  within  a 
given  radius.  "It  is  a  serious  offence,"  writes  Mr.  Howitt,  "  for 
a  man  to  kill  [the  totem]  of  another  person,"  ^  that  is,  with  injurious 
intentions  towards  the  person. 

An  individual,  says  Mr.  Howitt,  "  has  of  course  his  own  proper 
individual  name,  which,  however,  is  often  in  abeyance  because  of 
the  disinclination  to  use  it,  or  even  to  make  it  generally  known  lest 
it  might  come  into  the  knowledge  and  possession  of  some  enemy, 
who  thus  having  it  might  thereby  '  sing '  its  owner  —  in  other 
words,  use  it  as  an  *  incantation.'  "  ^ 

Thus,  in  Australia,  the  belief  that  names  imply  a  mystic  rapport 
between  themselves  and  the  persons  who  bear  them  is  proved  to 
be  familiar,  and  it  is  acted  upon  by  each  individual  who  conceals 
his  secret  name. 

This  being  so,  when  the  members  of  human  groups  found  them- 
selves, as  groups,  all  in  possession  of  animal  group  names,  and  had 
forgotten  how  they  got  the  names,  (all  known  groups  having  long 
been  named),  it  was  quite  inevitable  that  men,  always  speculative, 
should  ask  themselves,  —  "  What  is  the  nature  of  this  connection 
between  us  and  the  animals  whose  names  we  bear  ?  It  must  be  a 
connection  of  the  closest  and  most  important  kind."  This  con- 
clusion, I  repeat,  was  inevitable,  given  the  savage  way  of  thinking 
about  names.     Will  any  anthropologist  deny  this  assertion  ? 

Probably  the  mere  idea  of  a  mystic  connection  between  them- 
selves and  their  name-giving  animals  set  the  groups  upon  certain 
superstitious  acts  and  abstentions  in  regard  to  these  animals. 

*  "The  Journal  of  the  Anthropological  Institute,"  vol.  xviii.  (1888), 
p.  53. 

2  Ihid.,  p.  51 ;    ."The  Native  Tribes  of  South-East  Australia,"  p.  581. 


Chap.  XI,  §  2.]  TOTEMISM   AND    EXOGAMY  223 

But  being  men,  and  as  such  speculative,  and  expressing  the  results 
of  their  speculations  in  myths,  they  would  not  rest  till  they  had 
evolved  myths  as  to  the  precise  nature  of  the  connection  between 
themselves  and  their  name-giving  animals,  the  connection  indi- 
cated by  their  names.     There  are  scores  of  such  myths. 

Now,  men  who  had  arrived  at  this  point  could  not  be  so  incon- 
ceivably unobservant  as  to  be  unaware  of  the  blood-connection 
between  mother  and  children  indicated  in  the  obvious  facts  of  birth. 
A  group  may  not  have  understood  the  facts  of  reproduction  and 
procreation  (as  the  Arunta  are  said  not  to  have  understood  them), 
but  the  facts  of  blood-connection,  and  of  the  relation  of  the  blood 
to  the  life,  could  escape  no  human  beings.^  As  savages  undeniably 
do  not  usually  draw  the  line  between  beasts  and  other  things  on 
one  side,  and  men  on  the  other,  as  we  do,  it  was  natural  for  some 
of  them  to  suppose  that  the  animal  bearing  the  human  group  name, 
and  therefore  solidaire  with  the  group,  was  united  with  it,  as  the 
members  of  the  human  group  themselves  were  visibly  united, 
namely,  by  the  blood-bond.  The  animal  is  thus  explained  as  men's 
ancestor,  or  brother,  or  primal  ancestral  form.  (Or  the  man's 
soul  is  an  emanation  from  a  supposed  primal  being  of  animal  form.) 
This  belief  would  promote  kindness  to  and  regard  for  the  animal. 

Unessential  to  my  system  is  the  question,  hoiv  the  groups  got 
animal  names,  so  long  as  they  did  get  them  and  did  not  remember 
how  they  got  them,  and  so  long  as  the  names,  according  to  their 
way  of  thinking,  indicated  an  essential  and  mystic  rapport  between 
each  group  and  its  name-giving  animal.  No  more  than  these 
things  —  a  group  animal-name  of  unknown  origin ;  and  belief 
in  a  transcendental  connection  between  all  bearers,  human  and 
bestial,  of  the  same ;  —  was  needed  to  give  rise  to  all  the  totemic 
creeds. 

Now,  we  can  prove  that  the  origin  of  the  totem  names  of  savage 
groups  is  unknown  to  the  savages,  because  they  have  invented 
many  various  myths  to  account  for  the  origin  of  the  names.  If 
they  knew,  they  would  not  have  invented  such  myths.  Thus 
that,  by  their  way  of  thinking,  the  name  denotes  a  transcendental 
connection,  which  may  be  exploited,  between  themselves  and  their 
name-gi^'ing  animals  we  have  proved. 

In  "  Social  Origins  "  I  ventured  to  guess  as  to  how  the  group 
names  first  arose,  namely,  in  sobriquets  given  by  group  to  group.^ 
I  showed  that  in  France,  England,  the  Orkneys,  and  I   may  now 

•  Cf.  "The  Cxolden  Bough"  (2d  ed.),  vol.  i.,  pp.  360-2. 

-  The  passage  will  bo  found  in  "Social  Origins,"  pp.  166-75. 


224  PERSONS  [Part  II. 

add  Guernsey,  and  I  believe  Crete,  villagers  are  known  by  animal 
names  or  sobriquets,  as  in  France  —  Cows,  Lizards,  Pigeons, 
Frogs,  Dops  ;  in  Orkney  —  Starlings,  Oysters,  Crabs,  Seals,  Auks, 
Cod,  and  so  forth.  I  also  gave  the  names  of  ancient  Hebrew 
villages,  recorded  in  the  "  Book  of  Judges,"  such  as  Lions,  Jackals, 
Hornets,  Stags,  Gazelles,  Wild  Asses,  Foxes,  Hysenas,  Cows, 
Lizards,  Scorpions,  and  so  forth.  I  also  proved  that  in  the  Ork- 
neys, and  in  the  Sioux  tribe  of  Red  Lidians,  rapidly  ceasing  to  be 
totemic,  the  group  sobriquets  w^ere  often  "Eaters  of"  this  or  that 
animal,  or  (where  totemism  survived  among  the  Sioux)  "not 
Eaters  of"  this  or  that.^  I  thus  established  the  prevalence  in 
human  nature,  among  peasants  and  barbarians,  of  giving  animal 
group  sobriquets.  "In  Cornw^all,"  writes  an  informant  (Miss 
Alleyne),  "it  seems  as  if  the  inhabitants  do  not  care  to  talk  about 
these  things  for  some  reason  or  another,"  and  "the  names  are 
believed  to  be  very  ancient."  When  once  attention  is  drawn  to 
this  curious  subject,  probably  more  examples  will  be  discovered. 

I  thus  demonstrated  (and  I  know  no  earlier  statement  of  the 
fact)  the  existence  in  the  classes  least  modified  by  education  of 
the  tendency  to  give  such  animal  group  sobriquets.  The  same 
principle  even  now  makes  personal  names  derived  from  animals 
most  common  among  individuals  in  savage  countries,  the  animal 
name  usually  standing,  not  alone,  but  qualified,  as  Wolf  the  Un- 
washed, in  the  Saga  ;  Sitting  Bull,  and  so  on.  As  we  cannot  find 
a  race  just  becoming  totemic,  we  cannot,  of  course,  jyrove  that  their 
group  animal-names  were  given  thus  from  without,  but  the  process 
is  elsewhere  undeniably  a  vera  causa,  and  does  operate  as  we  show, 
w^hile  it  certainly  operates  in  conferring  names  on  clans  just  emerg- 
ing from  totemism. 

As  to  this  suggestion  about  the  sources  of  the  animal  names 
borne  by  the  groups,  Dr.  Durkheim  remarks  that  it  is  "conjectu- 
ral." ^  Emphatically  it  is,  like  the  Doctor's  own  theories,  nor  can 
any  theory  on  this  matter  be  other  than  guess-work.  But  we  do 
not  escape  from  the  difficulty  by  merely  saying  that  the  groups 
"adopted"  animal  names  for  themselves;  for  that  also  is  a  mere 
conjecture.  Perhaps  they  did,  but  why?  Is  it  not  clear  that, 
given  a  number  of  adjacent  groups,  each  one  group  has  far  more 
need  of  names  for  its  neighbours  than  of  a  name  for  itself?  "We" 
are  "we,"  "The  Men"  ;  all  the  rest  of  mankind  are  "wild  blacks," 
"barbarians,"  "outsiders."     But  there  are  a  score  of  sets  of  out- 

1  "Social  Origins,"  pp.  295-301. 

2  "Folk-Lore,"  vol.  xiv.,  p.  423. 


Chap.  XI,  §  2.]  TOTEMISM   AXD    EXOGAMY  225 

siders,  and  "we,"  "The  ]Men,"  need  names  for  each  and  every  one 
of  them.  "We"  are  "The  ]Men,"  but  the  nineteen  other  groups 
are  also  "The  Men,"  —  in  their  own  opinion.  To  us  they  are 
something  else  ("they"  are  not  "we"),  and  we  are  something  else 
to  them ;  ive  are  not  they;  we  all  need  differentiation,  and  we  and 
they,  by  giving  names  to  outsiders,  differentiate  each  other.  The 
names  arose  from  a  primitive  necessity  felt  in  everyday  life. 
Through  taunts  bandied  between  groups,  and  through  women 
stolen  by  group  from  group,  the  names  would'  become  generally 
known. 

That  such  sobriquets,  given  from  without,  may  come  to  be 
accepted,  and  even  gloried  in,  has  been  doubted,  but  we  see  the 
fact  demonstrated  in  such  modern  cases  as  "the  sect  called 
Christians"  (so  called  from  without),  and  in  Les  Gueux,  Huguenots, 
AYhigs,  Tories,  Cavaliers,  Cameronians  ("that  nick-name,"  cries 
Patrick  Walker  (1720),  "why  do  they  not  all  call  them  '  Cargill- 
ites'?  if  they  will  give  them  a  nickname?").^  I  later  prove 
that  two  ancient  and  famous  Highland  clans  have,  from  time  im- 
memorial, borne  clan  names  which  are  derisive  nicknames.  Sev- 
eral examples  of  party  or  local  nicknames,  given,  accepted,  and  re- 
joiced m,  have  been  sent  to  me  from  North  Carolina. 

Another  example,  much  to  the  point,  may  be  offered.  The 
"nations,"  that  is,  aggregates  of  friendly  tribes,  in  Australia,  let 
us  say  the  Kamilaroi,  are  usually  known  by  names  derived  from 
their  word  for  "No,"  such  as  Kamil  (Kamilaroi),  JJ^ira  (Wirajuri), 
Wonghi  (Wonghi  tribe),  Kahi  (Kabi  tribe).  Can  any  one  suppose 
that  these  names  were  given  from  within?  Clearly  they  were 
given  from  without  and  accepted  from  within.  One  of  the  Wonghi 
or  of  the  Wirajuri  or  Kamilaroi  tribe  is  "proud  of  the  title." 
]\Iessrs.  Spencer  and  Gillen  write,  "  It  is  possible  that  the  names  of 
the  tribes  were  originally  applied  to  them  by  outsiders  and  were 
subsequently  adopted  by  the  members  of  the  tribes  themselves, 
but  the  evidence  is  scanty  and  inconclusive."  ^  There  can  hardly 
be  any  evidence  but  what  we  know  of  human  nature.  Do  the 
French  call  themselves .0?^  Ouif  No!  But  the  natives  of  New 
Caledonia  call  them  Qui  Oui.^ 

Moreover,  to  return  to  totem  names,  savage  groups  would  have 
no  reason  for  resenting,  as  derisive,  animal  names  given  from  with- 
out.    Considering  the  universal  savage  belief  in  the  mystic  wisdom 

1  "Six  Saints  of  the  Covenant"  (1901),  vol.  i.,  p.  241. 

2  "The  Northern  Tribes  of  Central  Australia,"  p.  11  (note). 

'J.  J.  Atkinson.  The  natives  call  us  "White  Men."  We  do  not  call 
ourselves  "Goddams,"  but  Jeanne  d'Are  did. 


226  PERSONS  [Part  II. 

and  icakan,  [or  mmia],  or  power,  of  animals,  there  was  no  kind  of 
objection  among  savages  to  being  known  by  animal  group  names. 
The  names  came  to  be  regarded  as  rather  honour-giving  than  deri- 
sive. This  has  not  been  understood  by  my  critics.  They  have 
said  that  among  European  A'illages,  and  among  the  Sioux  of  to-day, 
group  nicknames  are  recognized,  but  not  gloried  in  or  even  accepted 
meekly.  My  answer  is  obvious.  Our  people  have  not  the  savage 
ideas  about  animals :  while  the  Sioux  clans  do  accept  their 
sobriquets. 

Mr.  Howitt,  in  his  turn,  does  not  approve  of  my  idea,  thus 
stated  by  him,  that  "the  plant  and  animal  names  would  be  im- 
pressed upon  each  group  from  without,  and  some  of  them  would 
stick,  would  be  stereotyped,  and  each  group  would  come  to  answer 
to  its  nickname."  He  replies,  —  "To  me,  judging  of  the  possible 
feelings  of  the  pristine  ancestors  of  the  Australians  by  their  de- 
scendants of  the  present  time,  it  seems  most  improbable  that  any 
such  nicknames  would  have  been  adopted  and  have  given  rise  to 
totemism,  nor  do  I  know  of  a  single  instance  in  which  such  names 
have  been  adopted."  ^ 

Mr.  Howitt,  of  course,  could  not  possibly  find  kinships  noic 
adopting  animal  and  other  such  names  given  from  without,  because 
all  kinships  where  totemism  exists  have  got  such  names  already, 
and  with  the  names  a  sacred  body  of  customs.  But  does  he  sup- 
pose that  the  many  local  tribes  calling  themselves  by  their  word 
for  "No"  (as  Kahi,  Kamil,  Wonghi,  and  so  on),  originally  gave 
these  names  to  themselves,  saying,  "We  are  the  people  who,  when 
we  mean  'No,'  say  'WojigJiVf  That  seems  to  me  hardly  cred- 
ible !  Much  more  probably  tribes  who  used  a  Kamil  or  Kabi  for 
"No"  gave  the  name  of  Wonghi  to  a  tribe  who  used  Wonghi  in 
place  of  their  Kamil  or  Kahi.  In  that  case  the  tribes,  as  tribes, 
have  adopted  names  given  from  without. 

Again,  I  consider  that  the  feelings  of  that  noble  savage,  the  Red 
Indian,  are  at  least  as  sensitive  to  insult  as  those  of  Mr.  Howitt's 
blacks.  Now  it  so  happens  that  the  Blackfoot  Indians  of  North 
America,  who  apparently  have  passed  out  of  totemism,  have 
"gentes,  a  gens  being  a  body  of  consanguineal  kinsmen  in  the  male 
line,"  writes  Mr.  G.  B.  Grinnell.^  These  clans,  now  no  longer 
totemic,  needed  names,  and  some  of  their  [new]  names,  at  least,  are 
most  insulting  nicknames.  Thus  we  have  Naked  Dogs,  Skunks, 
They  Don't  Laugh,  Buffalo  Dung,  All  Crazy  Dogs,  Fat  Roasters, 

1  "The  Native  Tribes  of  Soutli-East  Australia,"  p.  154. 

2  !'Blackfoot  Lodge  Tales,"  p.  208. 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  227 

and  —  Liars  !  Xo  men  ever  gave  such  names  to  their  own  com- 
munity. In  a  diagram  of  the  arrangement  of  these  clans  in  camp, 
made  about  1850,  we  find  the  gentes  of  the  Pi-kun'-I  under  such 
pretty  titles  as  we  have  given. ^  (Other  instances  are  given  at  the 
close  of  the  chapter.) 

If  we  want  to  discover  clans  of  fiery  Celts  adopting  and  glorying 
in  names  which  are  certainly,  in  origin,  derisive  nicknames,  we  find 
Clan  Diarmaid,  whose  name,  Campbell,  means  "Wry  Mouth,"'  and 
Clan  Cameron,  whose  name  means  "  Crooked  Nose. "  ^ 

Moreover,  South  African  tribes  believe  that  tribal  sacred  animals, 
siboko,  as  Baboon  and  Alligator,  may,  and  did,  arise  out  of  nick- 
names; for  their  myths  assert  that  nicknames  are  the  origin  of 
such  tribal  and  now  honourable  names.  I  cannot  prove,  of  course, 
that  the  process  of  adopting  a  name  given  from  without  occurred 
among  primitive  men,  but  I  have  demonstrated  that,  among  all 
sort  and  conditions  of  men  in  our  experience,  the  process  is  a  vera 
causa. 

Dismissing  my  theory,  Mr.  Howitt,  in  place  of  it,  "could  more 
easily  imagine  that  these  early  savages  might,  through  dreams, 
ha^•e  developed  the  idea  of  relationship  with  animals,  or  even  with 
plants."  3 

That  animal  nicknames,  given  from  without,  can  be  and  are  ac- 
cepted in  Australia  Mr.  Howitt  seems  to  think  possible  in  his  own 
book,  in  the  ver\-  page  in  which  he  says  that  the  fact  "  seems  to  him 
most  improbable."  He  writes,  "The  hypothesis  suggested  by 
Professor  Haddon  is  that  groups  of  people,  at  a  very  early  period, 
by  reason  of  their  local  environment,  would  have  special  varieties 
of  food.  This  receives  support  from  the  fact  that  analogous  names 
obtain  now  in  certain  tribes,  e.g.  the  Yuin."  If  this  be  the  case, 
my  theory  is  so  far  accepted ;  groups  may  and  do  receive  names 
from  their  articles  of  food.  How  the  steps  respecting  the  animals 
or  other  objects,  denoted  by  the  names  of  the  human  groups, 
would  be  taken,  I  have  shown.  But  I  cannot  find  that  ]Mr.  Howitt 
gives  any  examples  of  such  group-sobriquets  among  the  Yuin  and 
other  tribes.  Some  Yuin  personal  names  are  Thunder,  Stone- 
tomahawk,  and  so  forth;  the  "family"  names  are  place-names."* 
The  elderly  Kurnai  receive  personal  nicknames  from  the  animals 
which  they  are  skilled  in  catching,  as  Bunjil-tamhun,  "Good  man 
perch."  5     I  repeat  that  nobody  could  find  "groups"  accepting 

'  O-p.  cit.,  pp.  208,  225. 

2  Macbain,  "An  Etymological  Dictionary  of  the  Gaelic  Language," 
p.  357. 

3  Op.  cit.,  p.  154.  *  Op.  cit.,  p.  739.  »  ji^id.,  p.  738. 


228  PERSONS  [Part  II. 

new  animal  nicknames  now,  as  the  totem  "groups"  are,  of  course, 
already  named  Cat  or  Dingo  or  Iguana  and  so  forth. 

iMeanwhile  Mr.  Haddon's  suggestion,  made  in  the  same  year 
(1902)  as  my  own,  is  really  a  form  of  my  own,  differing  in  so  far 
as  he  derives  the  group  sobriquets  entirely  from  articles  of  food 
in  the  area  of  the  group  ;  and  supposes  the  group-folk  to  have  lived 
mainly  on  the  object,  and  bartered  what  was  superfluous  with 
other  groups  in  exchange  for  [supplies  of  the  objects  on  which  the 
latter  mainly  lived].  His  chief  example  was  drawn  from  a  myth 
of  two  totem  kins  in  a  tribe  to  the  effect  that  their  totem  names,  a 
small  fish  and  a  very  small  opossum,  had  once  been  their  staple 
as  food.  But  the  known  five  other  totem  kins  in  the  tribe,  accord- 
ing to  their  myth,  were  descended  from  their  totems,  and  one  myth 
is  as  worthless  as  another.^ 

Against  Mr.  Haddon's  theory  Mr.  Baldwin  Spencer  urged  ob- 
vious criticisms.  Every  group  eats  everything  that  is  edible  in  its 
area.2 

INIoreover,  I  add,  nobody  eats  Morning  Star  or  Rainbow ;  the 
Red  Ochre  kin  of  the  Dieri  live  very  far  from  the  red-ochre  pits, 
and  Mr.  Haddon  can  hardly  think  that  any  kin  lives  mainly  on 
carpet  snakes,  or  black  bees,  or  sandal  wood,  or  bats,  or  wolves 
and  ravens  —  dura  ilia! 

]\Ir.  Haddon's  theory,  however,  agrees  with  my  own  in  the  es- 
sential point  that  group  assumed  names  were  given  from  without. 

I  may  best  deal  here  with  Mr.  Frazer's  other  objections  of  1910 
to  Mr.  Haddon's  theory,  as  in  essence  INIr.  Haddon's  idea  and  mine 
are  much  akin.  Obviously  unacquainted  with  my  views,  Mr.  Frazer 
confines  his  criticism  to  those  of  Mr.  Haddon,  and  is  clearly  unaware 
that  in  "  The  Secret  of  the  Totem  "  (1905)  I  replied  to  his  ob- 
jections as  formulated  by  other  writers.  Concerning  Mr.  Haddon's 
view  INIr.  Frazer  writes,^  —  "The  view  that  the  names  of  the  totem 
clans  were  originally  nicknames  applied  to  them  by  their  neigh- 
bours, which  the  persons  so  nicknamed  adopted  as  honourable 
distinctions,  appears  to  be  very  unlikely.  Strong  evidence  would 
be  needed  to  convince  us  that  any  group  of  men  had  complacently 
accepted  a  nickname  bestowed  on  them,  perhaps  in  derision,  by 
their  often  hostile  neighbours.  ..."  I  had  answered  all  this  and 
supplied  the  strongest  possible  evidence,  in  "  The  Secret  of  the 
Totem  "  (pp.  129-34),  giving  modern  examples,  examples  of  High- 

1  See  Mr.  Haddon's  views  in  "Report  of  the  British  Association," 
Belfast,  1902. 

-  "Totemism  and  Exogamy,"  vol.  iv.,  pp.  50-1  and  Notes. 
3  Ibid.,  vol.  iv.,  p.  51. 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  229 

land  clans  (who  are  touchy  on  points  of  honour),  examples  from 
the  Blackfoot  Indians,  and  (pp.  25-6)  the  instance  of  Bakuena 
tribes  who  account  for  their  tribal  sacred  animals  (siboko)  as  the 
result  of  accepted  nicknames. 

Mr.  Frazer  continues  his  criticism  :  this  strong  evidence 

"would  be  needed  to  convince  us  that  anj^  group  of  men  had  compla- 
cently accepted  a  nickname  bestowed  on  them,  perhaps  in  derision,  by 
their  often  hostile  neighbours,  nay,  that  they  had  not  only  adopted  the 
nickname  as  their  distinctive  title  and  badge  of  honour,  but  had  actually 
developed  a  religion,  or  something  like  a  religion,  out  of  it,  contracting 
such  a  passionate  love  and  admiration  for  the  animals  or  plants  after 
which  they  were  nicknamed  that  they  henceforth  refused,  at  the  risk  of 
dying  of  hunger,  to  kill  and  eat  them."  i 

This  is  somewhat  exaggerated.  Mr.  Frazer  has  declared  that 
totemism  is  not  a  religion.^  Again,  I  know  no  evidence  to  prove 
that  any  totemist  would  rather  die  of  hunger  than  eat  his  totem : 
several  Australian  tribes  eat  their  totems  freely.  For  the  extraor- 
dinary influence  of  the  name  as  implying  the  closest  rapport 
between  all  who  bear  it,  I  merely  refer  to  ^Nlr.  Frazer 's  "  Golden 
Bough,"  vol.  i.,  pp.  404-46.  On  my  theory,  as  totemists  certainly 
do  not  know  how  they  got  their  totem  names,  they  would  seldom 
suspect,  like  the  Baliurutsi,  that  they  were  nicknames,  perhaps 
derisive.  I  have  proved  on  unimpeachable  evidence,  Mr.  Price's, 
that  the  Northern  Bakuena  think  that  a  process  occurred  which 
only  "strong  evidence"  would  make  Mr.  Frazer  believe  in.  How- 
ever, I  am  able  to  prove  that  savages  can  accept,  and  have  ac- 
cepted, "clan"  nicknames  from  without. 

Take  this  "strong  evidence"  :  j\Ir.  Frazer  writes  of  the  Wendal 
or  Wyandot,  the  Hurons'  name  for  themselves.  "According  to 
L.  H.  Morgan  the  original  form  of  the  name  Wyandot  is  wane-dot, 
'calf  of  the  leg,'  a  name  given  to  these  Indians  by  the  Iroquois 
and  adopted  by  themselves."  ^  Again,  the  Black  Feet  Indians 
have,  or  had,  exogamous  clans  with  male  descent.  The  names 
of  these  clans  are  no  longer  totemic.  Among  them  now  are  Liars, 
Biters,  Patched  Moccasins,  "They  Don't  Laugh,"  Worms,  Buffalo 
Dung,  Crazy  Dogs.^ 

I  cite  these  as  obvious  and  derisive  sobriquets,  but  the  clans 
have  now  no  other  names.     Other  clan  names  occur  among  the 

1  Ihid.,  vol.  iv.,  p.  51. 

2  Ibid.,  vol.  iv.,  p.  5.  5  Ibid.,  vol.  iii.,  p.  30,  n.  1. 

*  Grinnell,  "Blackfoot  Lodge  Tales,"  pp. .208-10,  cited  in  "Totemism 
and  Exogamy,"  vol.  iii.,  p.  84,  n.  3;    "The  Secret  of  the  Totem,"  p.  132. 


230  PERSONS  [Part  II. 

Dacotas,  who,  as  INIr.  Frazer  points  out,  appear,  in  the  seventeenth 
century,  to  have  had  badges,  as  that  of  the  Eagle,  Panther,  Tiger, 
Buffalo,  etc.,  from  which  each  band  "is  denominated."  ^  Now 
their  clans  are  styled  "Not  encumbered  with  much  baggage," 
"Bad  Nation,"  "Breakers  (of  the  law),"  the  law  broken  being  that 
of  exogamy!"  No  community  ever  called  itself  "Incestuous," 
or  "Bad  Nation"  ;  these  clan  names  are  sobriquets. 

Once  more,  the  Crows  have  exogamous  clans;  out  of  twelve, 
four  are  totemic  in  name,  Antelope,  Raven,  Prairie  Dog,  Skunk. 
I  presume  that  these  totem  names  were,  in  origin,  sobriquets,  just 
as  some  of  the  other  clan  names  of  the  Crows,  Bad  Leggings, 
Treacherous  Lodges,  Bad  Honours,  are  undeniably  hostile  yet 
accepted  sobriquets.^ 

In  Europe  the  sobriquets,  animal  or  vegetable,  of  the  villages 
are  now  resented,  and  one  village  is  angry,  in  Cornwall,  when 
another  village  hangs  up  its  jMouse,  or  whatever  its  animal  may  be, 
dead,  by  way  of  a  taunt.  INIr.  Frazer's  readers  cannot  be  aware 
(nor  is  he,  I  daresay)  that  in  1905  I  defended  my  theory  that 
savages  can  and  do  accept  even  injurious  clan  sobriquets  from 
without  by  actual  examples,  and  that  I  have  shown  how,  the  ani- 
mal name  once  accepted,  "a  religion,  or  something  Uke  a  religion" 
of  it,  was  "actually  developed."     Mr.  Frazer  writes 

"No  single  instance  of  such  an  adoption  of  nicknames  from  neigh- 
bours was  known  to  Dr.  Howitt,  the  most  experienced  of  Australian  an- 
thropologists, in  the  whole  of  Australia."  * 

I  have  quoted,  above,  my  reply,  given  in  "  The  Secret  of  the 
Totem,"  to  Mr.  Howitt. 

Here  may  close  my  chapter  of  answers  to  objections  against 
the  possibility  of  complacent  acceptance  of  sobriquets.  It  occurs 
in  savage  as  it  does  in  civilised  societies :  many  of  the  facts  are 
recorded  by  Mr.  Frazer  himself,  others  he  has  overlooked ;  and 
certainly  my  array  of  the  facts  in  1905  has  escaped  his  vigilant 
industry  in  stud}',  otherwise  he  would  not  have  ignored  what  is 
essential. 

jNIy  theory  of  the  origin  of  the  phratry  system,  as  given  in  1905, 
has  now  to  be  modified  in  consequence  of  the  general  acceptance 
of  certain  evidence. 

1  J.  Carver,  "Travels  through  the  Interior  Parts  of  North  America," 
(3d  ed.,  1781),  p.  256. 

-  "Totemism  and  Exogamj^"  vol.  iii.,  pp.  86-7,  n.  4. 

'  Ibid.,  vol.  iii.,  pp.  153-4. 

*  Ibid.,  vol.  iv.,  p.  52,  n.  2 ;  Howitt,  ^'The  Native  Tribes  of  South-East 
Australia,"  p.  154. 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  231 

I  next  suppose  that  a  local  exogamous  group  of,  say,  Ducks,  and 
another  neighbouring  group  named  Dogs,  weary  of  fighting  for 
wives  against  the  kin  of  their  own  wives  and  own  children,  made 
peace  with  connubium.  Here  we  have  the  evidence  of  the  Ura- 
bunna,  Karamundi,  and  Itchumundi  arrangement  by  which  people 
of  one  totem  must  marry  only  people  of  one  other  totem,  as  Dingo, 
among  the  Urabunna,  marries  only  into  Water  Hen.^ 

The  Itchumundi  nation  contains  four  tribes.  A  man  of  the 
Mukwara  (Eagle  Hawk)  totem  and  phratry  "married  a  Kilpara" 
(Crow  phratry)  of  the  Bone-fish  totem ;  a  ^Nlukwara  of  the  Kan- 
garoo totem  married  a  Kilpara  of  the  Emu  totem,  a  ^lukwara  of 
the  Dog  totem  married  a  Kilpara  of  the  Padi-melon  totem,  and  so 
on.  "The  tribes  of  the  Karamundi  nation  have  a  similar  rule 
[like  that  of  the  Itchumundi  nation]  by  which  a  member  of  either 
class"  [phratry]  "may  marry  only  in  one  totem  of  the  other  class."  ^ 
Messrs.  Spencer  and  Gillen  and  I\Ir.  Howitt  assign  the  same  rule 
to  the  Urabunna  nation.  All  these  tribes  are  in  the  most  primitive 
state  of  social  organization,  with  female  descent  and  no  sub- 
classes ;  the  Urabunna  have,  the  others  have  not,  yirrauni.  ]\Ir. 
Frazer,  ]\Ir.  Spencer,  and  INIr.  Howitt  make  no  attempt  to  explain 
their  unique  rule  of  one  totem  to  one  totem  marriage.  It  must 
make  the  two  intermarrying  totem  kins  in  a  high  degree  consan- 
guineous, and  can  scarcely  have  been  adopted  to  prevent  marriages 
of  near  kin,  if  cousins  were  reckoned  near  kin. 

These  marriages  are  mainly  marriages  of  first  cousins,  which 
Urabunna  law  permits,  if  the  bride  be  a  daughter  of  the  man's 
mother's  younger  brother,  or  of  his  father's  younger  sister.  When 
one  small  community  may  select  wives  only  from  one  other  small 
community,  —  Water  Hen  group  from  Dingo  group  with  restric- 
tions on  that,  —  if  the  people  may  not  marry  some  of  their  first 
cousins,  whom  may  they  marry  ? 

The  Dieri,  on  the  other  hand,  may  marr^"  any  person  of  the  right 
tribal  status,  {all  first  cousins  are  excluded),  in  any  of  the  many 
totems  in  the  phratry  which  is  not  their  own  ;  whereas  among  the 
Urabunna,  Karamundi,  and  Itchumundi  the  members  of  each 
totem  kin  may  only  marry  into  one  totem  kin  in  the  opposite 
phratry. 

1  would  suggest  that,  among  the  Urabunna  and  the  other  "  na- 
tions," first  Dingo  and  Water  Hen,  say,  made  a  covenant  to  marry 

^  "Totemism  and  Exogamy,"  vol.  i.,  pp.  176-,  387-8,  quoting  Howitt 
and  Spencer  and  Gillen. 

2  Howitt,  op.  cit.,  pp.  194,  189. 


232  PERSONS  [Part  II. 

peacefully  with  each  other  alone,  (some  two  kins  must  have  begun 
the  practice),  and  that  then  other  pairs  imitated  the  example; 
and,  finally,  all  pairs  coalesced  into  one  federated  phratry  or  the 
other.     What  they  gained  by  this  was  peace. 

The  arrangement,  I  conjecture,  would  be  worked  out  thus : 
first  we  have  x  animal-named  exogamous  local  groups  raiding 
each  other  for  wives.  Two  such  groups.  Water  Hen  and  Dingo, 
tire  of  this,  and  make  a  marriage  treaty  for  peaceful  betrothals : 
other  groups,  however,  may  still  raid  them,  and  they  may  raid  other 
groups,  as  they  probably  would,  in  revenge  for  raids  on  themselves, 
and  because,  in  two  small  communities,  marriageable  women  were 
not  very  plentiful.  But  other  groups  follow  their  example,  two  by 
two.  This,  however,  does  not  prevent  any  adventurous  braves 
in  any  of  the  groups  from  raiding  every  group  which  is  not  the 
one  linked  by  marriage  treaty  with  his  own.  This  dangerous 
license  would  cease  when  half  of  the  groups  federated,  and  the  other 
half  also  federated  into  what  are  now  the  phratries,  each  phratry 
as  a  whole  making  a  covenant  of  peace  with  the  other.  But,  by 
an  amazing  conservatism,  the  pairs  of  totem-kins  still  only  marry 
into  each  other  among  the  Urabunna,  Itchumundi,  and  Kara- 
mundi.  How  otherwise  than  by  my  conjecture  can  we  account 
for  this  strange  limit  to  choice  in  marriage  ? 

The  rule  of  one  totem-kin  wedding  into  only  one  other  totem- 
kin  in  the  opposite  phratry  must  be  earlier  than  marriage  into  any 
kin  of  the  opposite  phratry.  When  men,  as  among  the  Dieri,  or 
any  other  tribe  with  female  descent  and  two  phratries,  had  once 
been  permitted  to  seek  wives  in  all  of  the  totem-kins  of  the  phratry 
not  their  own,  they  never  could  submit  to  a  restriction  limiting 
them,  for  no  conceivable  reason,  to  brides  from  a  single  totem-kin. 
The  only  reason  for  restrictions  being,  by  the  ordinary  theory, 
closeness  of  consanguinity,  there  could  be  no  objection  to  Water 
Hen,  in  phratry  A,  wedding  into  any  totem-kin  of  phratry  B.  ]\Ir. 
Howitt,  however,  writes  that  "the  Urabunna  restriction"  (or 
"marriage  to  one  or  more  totems")  "is  certainl}'  later  in  origin 
than  the  Dieri  rule."  ^ 

This  seems  impossible.  Men  who  had  once  enjoyed  the  wide 
freedom  and  ample  latitude  of  choice  of  the  Dieri  would  never 
limit  themselves  to  brides  from  a  single  totem-ldn,  and  do  that 
for  no  conceivable  reason,  except  that  which  I  have  suggested. 
Dingo,  who  may  only  marry  Water  Hen,  is  not  consanguineous 
with  any  of  the  other  totem-kins  into  which  he  may  not  marry : 
'  Howitt,  op.  cit.,  p.  189. 


Chap.  XI,  §  2.]  TOTEMISM   AXD    EXOGAMY  233 

he  is  not  barred  from  union  with  them  for  that  cause.  Reason, 
if  there  were  a  dislike  of  consanguine  marriages,  would  urge  a 
larger  latitude  of  choice  than  a  single  kinship  offers,  for,  when  two 
small  kinships  marry  exclusively  with  each  other,  they  both  be- 
come extremely  consanguine.  Therefore  the  Urabunna  are  forced 
to  allow  first  cousins  to  marry,  as  far  as  the  age-grades  rules  permit ; 
they  ha^■e  no  choice  if  they  are  to  marry  at  all.  On  the  other 
hand,  the  Dieri,  among  whom  members  of  any  totem-kin  of  B 
phratry  may  marry  into  any  totem-kins  of  A  phratry,  are  able  to 
indulge  their  consciences  by  forbidding  all  marriages  between  what 
we  call  "first  cousins."  ^Ir.  Howitt  himself  sees  that  this  rule, 
"the  Dieri  rule  is  evidently  a  development  of  that  of  the  Ura- 
bunna, and  is  therefore  the  later  one."  ^     ^Ir.  Frazer  agrees." 

The  Dieri  rule  about  cousins  is  the  later  of  the  two,^  and  it  is 
rendered  possible  by  the  Dieri  emancipation  from  the  Urabunna 
and  Karamundi  rule  that  each  totem  may  marry  only  into  one  other 
totem. 

It  follows  that  the  Urabunna,  Karamundi,  and  Itchumimdi 
rule,  —  one  totem  marries  into  one  totem  only,  —  is  not  later,  as 
Mr.  Howitt  writes,  but  earlier  than  the  Dieri  rule,  —  any  totem 
in  phratry  A  may  marry  into  any  totem  in  phratry  B.  Emanci- 
pation from  the  Urabunna,  Itchumundi,  and  Karamundi  ^aw,  — 
one  totem  to  one  totem  only,  —  enabled  the  Dieri  to  bar  the 
marriages  of  all  first  cousins.  Consequently  the  one  totem  to  one 
totem  rule  is  the  earliest  of  all ;  and  how  can  we  explain  it  except 
by  the  alliance,  with  connuhium,  of  two  groups  with  totemic 
names  ?  The  example  thus  set  was  followed  by  pair  after  pair  of 
linked  totem-kins,  and  for  this  reason  there  is  necessarily  a  dual 
union  and  division  of  intermarrying  kins  throughout  the  Aus- 
tralian system.  This  is  an  automatic  result  of  one  totem  to  one 
totem  marriage,  followed  by  federations  of  the  intermarrying 
pairs  of  totem-kins. 

^^^ly  only  two  groups,  in  the  first  place,  made  alliance  with 
connuhium,  I  have  not  to  explain.  It  is  enough  that  they  certainly 
did  it,  (in  several  nations  they  still  adhere  to  connuhium,  between 
two  totems  only),  unless  any  other  reason  for  the  one  totem  to  one 
totem  law  can  be  discovered.  Dislike  to  consanguineous  mar- 
riages could  not  produce  this  drastic  rule,  I  repeat,  for  each  totem- 
kin  must  have  recognised  no  consanguinity  with  any  other. 


'  Howitt,  op.  cit.,  p.  189. 

2  "Totemism  and  Exogamy,"  vol.  i.,  p.  346.       ^  Ibid.,  vol.  i.,  p.  346. 


234  PERSONS  [Part  II. 

Mr.  Frazer  makes  no  reference  to  myself,  or  to  M.  van  Gennep, 
on  this  matter,  but  (vol.  i.,  pp.  284-5),  argues  against  the  theory 
of  amalgamation,  without  noticing  our  replies  to  certain  objections 
that  had  already  been  urged  on  us  by  others.  "Why,"  he  asks, 
"were  these  federal  communities  so  regularly  either  two  in  num- 
ber or  multiples  of  two?"  M.  van  Gennep  had  briefly  said  that 
our  theory  of  convergence  (amalgamation)  "seule  explique  entre 
autres  lefait  dudualismedes elements  dechaque  groupe  [p.xxxiv]." 
He  added  that  the  Australians  generally  "n'ont  de  noms  de  nom- 
bres  que  jusqu'a  deux,"  and,  for  an  element  of  symbolism  in  this, 
refers  to  Mr.  McGee,  "Primitive  Numbers,"  in  "  The  Nineteenth 
Annual  Report  of  the  Bureau  of  American  Ethnology,"  vol.  ii.,  pp. 
821-51.     These  are  not  my  own  ideas,  but  those  of  M.  van  Gennep. 

I  would  say  that,  if  amalgamation  began  in  the  Urabunna  "  one 
totem  to  one  totem"  marriage,  w^hile  such  pairs  finally  federated 
into  each  phratry,  Mr.  Frazer's  question  is  answered.  I  regard 
the  later  bisections  of  two  classes  into  four,  and  of  four  into  eight, 
as  deliberate  and  intelligent  imitations  of  the  original  model,  — 
the  sets  of  pairs,  the  "two  class  system."  The  natives,  like  Mr. 
Frazer,  would  think  that  it  had  been  the  result  of  bisection,  not  of 
amalgamation,  and  would  imitate  what  they  supposed  to  have 
been  the  wise  method  of  their  ancestors. 

Mr.  Frazer's  argument  ought  to  be  given  in  his  own  words 
(vol.  i.,  p.  285) :  — 

"While  we  may  without  much  difficulty  conceive  that  communities," 
(in  this  case  totem-kins)  "which  in  their  independent  state  had  been 
exogamous,  should  remain  exogamous  after  they  had  united  to  form  a 
confederacy ;  it  is  far  more  difficult  to  understand  why  in  uniting  they 
should  have  adopted  the  complicated  rule  of  descent  which  characterises 
the  four-class  and  eight-class  organisations  of  the  Australian  tribes." 

Nobody  has  ever  suggested  (as  far  as  I  know)  that  "in  uniting" 
the  totem-kins  instantly  "adopted"  the  four  or  eight  class  sys- 
tem. The  tribes  of  one  totem  to  one  totem  marriage :  the  Dieri, 
without  that  rule  :  the  To-tathi,  Barkinji,  and  many  other  tribes, 
have  not  the  four  class  or  eight  class  system,  but  all  agree  that 
tribes  began  with  the  two  class  or  phratry  model.  Many  tribes 
adhere  to  it ;  others  have  gone  on  to  the  four ;  others  (all  with  male 
descent)  to  the  eight  class  system.  Their  motive  and  method,  I 
think,  are  obvious.  They  do  not  know  liow  the  phratr\',  or  two 
class  system,  arose,  but  they  see  that  it  excludes  from  marriage 
some  close  consanguines,  mother  and  son,  brother  and  sister. 
They  suppose  that  the  system  was  made  for  this  very  purpose,  and 
when  they  wanted  to  exclude  other  consanguines,  whom  the  sys- 


Chap.  XI,  §  2.]  TOTEMISM   AND   EXOGAMY  235 

tern  did  not  exclude,  the\'  did  so  in  the  honoured  ancestral  model, 
by  repeated  bisections,  making  first  two,  then  four  "subclasses" 
in  each  phratry. 

jNIr.  Frazer  goes  on :  —  "  We  can  imagine  that  each  community 
in  the  confederacy  should  continue  as  before  to  take  its  wives  from 
another  community,"  ("community"  apparently  now  means 
phratry),  "but  why  should  the  two  intermarrying  communities 
now  cede  their  child  to  a  third?"  The  third  ("community" 
clearly  means  "subclass").  Mr.  Frazer  knows,  and  has  very  well 
explained,  why  the  children  are  "ceded  to  a  third  community," 
that  is,  enter  the  subclass  in  the  brother  or  mother's  [sister's?] 
phratry,  which  is  not  that  of  father  or  mother  (vol.  i.,  p.  163).  It 
"is  to  prevent  the  marriage  of  parents  with  children."  The  child 
is  not  driven  into  an  alien  "community";  it  is  still  in  the  totem- 
kin  and  phratry  of  its  father  and  mother,  but  the  rule  "maks 
siccar  "  there  can  be  no  union  of  child  with  father  or  mother  without 
violating  an  express  law. 

The  same  obvious  reply  answers  this  objection  :  "  On  the  theory 
of  amalgamation  what  motive  can  be  assigned  for  the  rigid  exclu- 
sion of  all  children  from  the  communities  of  both  parents  ?  "  There 
was  no  such  exclusion,  no  subclasses  existed,  when  the  amalgama- 
tion w^as  made;  there  w^as  none  till,  long  afterwards,  a  subclass 
arrangement  was  devised  to  stereotype  and  express  publicly  the 
already  existing  bye-lav\-  against  the  union  of  father  and  daughter, 
mother  and  son.  The  poor  children,  "rigidly  excluded  from  the 
communities  of  both  parents,"  are  still  in  the  parental  or  maternal 
"communities"  of  the  totem-kin  and  the  phratry  and  in  the 
family  fire-circle.  They  have  lost  nothing.  That  exclusion  is 
perfectly  intelligible  on  the  hypothesis  that  it  was  devised  to  pre- 
vent the  marriage  of  parents  with  children,  but  it  is  difficult  to  see 
how  it  can  be  explained  on  any  other  :  who  is  dreaming  of  explain- 
ing it  on  any  other?  People  entered  into  the  phratriac  exogamy 
by  the  amalgamation  which  I  and  ]M.  van  Gennep  suggest,  and 
then,  for  conscientious  reasons,  "  kept  compounding  it  as  they  went 
on,"  as  Byron  says  about  people  who  "  began  with  simple  adultery." 


On  my  theory  the  inimal  prohibition  was  not  based  consciously 
on  consanguinity,  but  on  locality  and  ownershij).  The  semi- 
brutal  Sire  says,  —  "Xo  amours  except  my  own  in  my  camp." 
When  the  groups  got  names,  —  Fmu,  Lizard,  Grub,  Iguana, 
Kangaroo,  —the  prohibition  was  "no  amours  within  the  name." 


236  PERSONS  [Part  II. 

^Yhen  two  groups  first  coalesced  into  commhium,  the  first  rule  was 
"no  marriage  with  peace  save  into  one  other  totem  group,"  The 
final  rule  was  "  marriage  into  any  totem-kin  not  in  your  own  phra- 
try."  As  the  rise  of  the  phratries  instantly  and  automatically 
produced  classificatory  relationships  or  "classes,"  people  were  con- 
fined in  marriage  to  one  set  of  such  relations  in  the  opposite  phratry, 
the  Nupa  or  Noa  set.  ]Men,  reflecting  on  the  system,  saw  that  it 
barred  the  marriage  of  persons  of  close  consanguinity,  and  thought 
that  other  persons,  also  consanguine  but  not  so  closely  consan- 
guine, should  be  excluded  ;  hence  the  four  and  eight  class  systems. 
In  the  same  way  the  Catholic  Church  excluded  first  cousins, 
and  relations  in  "gossipred,"  —  godfathers  and  godmothers, 
godsons  and  goddaughters,  —  from  intermarriage,  and  introduced 
other  restrictions  hitherto  unknown.  In  Scotland,  among  the 
noblesse,  it  became  very  difficult  for  any  marriage  to  occur  without 
a  dispensation,  and  many  pairs  were  divorced  because  of  some 
scarcely  traceable  relationship.  The  Australian  blacks,  in  pre- 
cisely the  same  way,  conceived  new  scruples,  and  passed  more 
stringent  regulations,  till  human  nature  revolted,  and  the  exoga- 
mous  s,ystem  w^as  abandoned  among  the  Kurnai  and  the  Narran-ga. 
They  had  run  the  w^hole  round  of  the  labyrinth  and  come  out  into 
daylight. 


Chapter  XII 
WOMEN   IN   PRIMITIVE   SOCIETY  ^ 


1.  It  will  help  us  to  begin  by  distinguishing  the  principal  ques- 
tions to  be  asked  about  the  marriage  customs  of  any  society.  Thus 
we  may  classify  marriage  : 

(1)  According  to  the  number  of  parties  to  the  union  (monog- 
amy, polygamy,  etc.). 

(2)  According  to  the  restrictions  on  marriage  (exogamy  and 
endogamy). 

(3)  According  to  its  stability  (law  of  divorce). 

(4)  By  the  methods  of  obtaining  a  husband  or  wife  {e.g.  capture, 
purchase,  contract). 

(5)  By  the  relations  between  husband  and  wife  (in  the  family) . 
The  two  last  questions  are  closely  related,  and  both  have  an 

important  bearing  on  the  general  position  of  women.  Under  each 
head  we  shall  see  what  are  the  principal  forms  of  marriage  customs 
that  exist,  and  which  are  the  prevalent  types  in  the  savage 
and  barbaric  world.  We  shall  then  briefly  trace  the  history  of 
marriage  and  of  the  position  of  women  among  civilized  peoples.^ 

2.  I.  We  have  to  ask  first  in  any  community,  who,  or  rather 
how  many,  are  the  possible  parties  to  a  marriage.  Is  it  (o)  a 
union  of  one  man  with  one  woman,  or  (6)  of  one  man  with  two  or 
more  women,  or  (c)  of  two  or  more  men  with  one  woman,  or  {d) 
of  a  group  of  men  with  a  group  of  women,  or  {e)  is  it  wholly  irregular, 
the  negation  of  union,  promiscuity  ?  All  these  are  t^'pes  of  marriage 
which  exist  or  have  existed,  or  at  least  have  been  alleged  to  exist. 
Further  they  split  up  into  sub-types.  Polygyny,  for  example, 
the  union  of  one  man  with  two  or  more  women,  is  found  in  the 

MBy  L.  T.  HoBHousE.  Reprinted  from  "Morals  in  Evolution,"  by 
permission  of  Henry  Holt  and  Company,  New  York.  Abbreviated  and 
omitted  book-titles  with  the  detail  of  editions  are  supplied  by  the  author's 
reference  list  on  p.  xiii  seg.,  Vol.  I  of  the  original  work.] 

-  [Chapter  XV  of  this  volume.] 

237 


23S  PERSONS  [Part  II. 

two  fairly  distinguishable  types  of  polygamy  proper,  in  which 
several  women  are  alike  wives,  and  concubinage,  in  which  there 
is  one  chief  and  fully  legitimate  wife,  and  one  or  more  in  a  subordi- 
nate and  perhaps  servile  position.^  The  one  type,  moreover,  shades 
off  into  the  other  by  gradations  according  as  the  chief  wife's 
position  is  more  or  less  fully  defined,"  and  as  that  of  the  secondary 
wives  is  more  or  less  servile.  Polyandry,  again,  though  far  less 
common  than  polygamy,  has  many  varieties.  The  several 
husbands  may,  and  in  the  commonest  case  do,  form  a  definite 
group.  Generally,  as  in  the  well-known  case  of  Thibetan  marriage, 
they  are  all  brothers.^  But  this  is  not  always  so.  Poh-andry  may 
merely  take  the  form  of  permitting  a  woman  to  have  many  hus- 
bands without  specifying  any  particular  relationship  between  them 
except  such  as  may  follow  indirectly  from  the  other  marriage  regu- 
lations of  the  community.  This  is  the  case  among  the  Nairs  of 
the  Malabar  coast.  The  same  people  illustrate  a  still  further 
variety,  the  combination  of  polyandry  and  polygamy.  For  as 
the  Nair  woman  may  have  many  husbands,  so  the  Nair  husband 
may  have  many  wives."*    Again,  in  the  relations  between  the  hus- 

-^  1  In  China  there  is  only  one  chief  wife.  The  others  are  secondary,  but 
legitimate  wives.  The  old  Babylonian  law  recognizes  one  wife  (allowing 
r  I  a  second  in  case  of  her  being  invalided),  with  concubines  who  were  to 
'  '  recognize  the  wife  as  mistress.  The  case  of  Leah  and  Rachel  illustrates  a 
family  in  which  there  were  two  legitimate  wives  as  well  as  concubines. 
Mussulman  law  allows  four  legitimate  waves  and  an  indefinite  number  of 
concubines.  The  old  Japanese  law  recognizes  polvgamy  with  a  head- 
wife.  (Post,  i.  62;  Kohler,  "Z.  f.  V.  R.,"  vi.  p.  369.)  For  instances 
among  uncivilized  peoples,  see  Howard,  i.  pp.  143-4,  and  Westermarck, 
p.  442,  etc.,  and  "Cambridge  Anthropological  Expedition  to  the  Torres 
Straits,"  p.  230. 

^  In  some  cases  a  second  wife  may  only  be  taken  if  the  first  is  childless, 
e.g.  among  peoples  of  the  Punjab,  and  the  Dekkan,  the  Santals  in  Bengal, 
some  Bombay  tribes.  {Post,  I.e.)  Post  also  refers  to  Bulgarian  and 
Montenegrin  customs. 

Among  the  Malays,  imder  the  Semando  form  of  marriage,  the  taking 
of  a  second  wife  is  a  ground  of  divorce,  and  at  Mokomoko  the  husband 
must  pay  her  a  fine,  40  gulden.  {Waitz,  v.  145,  146.)  Among  the  Khonds 
the  wife's  consent  is  required.  {Rechis,  "Primitive  Folk,"  p.  281.) 
Post  gives  similar  instances  among  the  Khyengs,  the  Tamils  of  Ceylon, 
and  Punjab  peoples  {Post,  i.  63,  from  Kohler,  "Z.  f.  V.  R.,"  vi.  p.  192), 
and  Howard  (i.  p.  144)  quotes  a  case  among  the  North  American  Indians. 
Among  the  Touaregs  the  taking  of  a  second  wife  is  a  ground  of  divorce. 
{Letourneau,  "La  Femme,"  p.  308.) 

'  Among  the  Todas  the  wife  belongs  to  the  elder  brother,  but  the  younger 
brothers  also  have  rights  over  her  as  they  grow  up,  and  an  extra  lover  is 
permitted  as  well.  {Reclus,  p.  196.)  Polyandry  is,  how^ever,  disappear- 
ing except  among  the  indigent.  According  to  Westermarck  (p.  453) 
there  are  only  three  cases  in  Asia  in  which  polyandry  is  not  limited  to 
brothers  —  \iz.  the  Nairs,  Khasias,  and  certain  Cossacks,  but  Letourneau 
("La  Femme,"  p.  216)  denies  that  it  is  strictly  limited  to  brothers  in 
Thibet. 

■*  Compare  Casar^s  account  of  the  ancient  Britons:    "Uxores  habent 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  239 

bands  there  are  differences  c^uite  parallel  to  those  which  distinguish 
polygamy  from  concubinage.  All  the  husbands  .  .  .  may  have 
ecjual  rights,  or  there  may  be  one  chief  husband  and  others  inferior 
and  secondary  to  him.  Of  such  a  character  is  the  secondary  hus- 
band who  assumes  both  the  rights  and  the  duties  of  the  proper 
husband  in  his  absence  among  the  Aleuts.^  Some  peoples  have  the 
punishment  —  to  our  eyes  the  very  paradoxical  punishment  —  for 
adultery  that  the  paramour  on  detection  is  compelled  to  become  a 
secondary  husband  and  contribute  to  the  maintenance  of  the 
family.^ 

3.  Of  group  marriage,  again,  more  than  one  variety  is  ab- 
stractly possible.  Though  as  here  the  evidence  becomes  scantier 
it  is  not  so  easy  to  say  which  types,  if  any,  have  been  actually 
represented  in  history.  Indeed,  it  cannot  be  regarded  as  certain 
that  any  such  institution  as  the  actual  marriage  of  two  groups,  as 
distinct  from  a  combination  of  polygamy  and  polyandry  with 
certain  marriage  taboos,  has  ever  existed.  As  the  whole  subject 
is  involved  in  controversy,  it  will  be  well  to  summarize  what  is 

deni  duodenique  inter  se  communes,  et  maxirae  fratres  cum  fratribus 
l^arentesque  cum  liberis ;  sed,  si  qui  sunt  ex  his  nati,  eorum  liabentur 
liberi,  a  quibus  primum  virgines  quaeque  deduetae  sunt."  ("B.  G.," 
V.  14.)  That  is,  there  was  a  chief  husband  and  the  rest  were  secondar.y. 
Among  the  polyandrous  tribes  of  primitive  Arabia  the  wife,  according  to 
Strabo,  passed  the  night  with  the  elder  brother,  but  the  others  had  access 
to  her.      {Starcke,  p.  137.)     For  the  Nairs,  see  Rechts,  162. 

1  Reclus,  pp.  66-67.  Among  the  Thlinkeets  and  Koloshes  a  younger 
brother  is  preferred  for  this  purpose.  Secondary  husbands  occur  among 
the  Papuas.      {Kohler,  "Z.  f.  V.  R.,"  1900,  p.  334.) 

2  Among  the  Konyagas,  if  the  paramour  is  a  member  of  the  husband's 
family  the  latter  may  compel  him  to  obey  his  orders  and  those  of  the  wife, 
with  whom  henceforth  the  association  is  legitimate.  (Rechis,  p.  67.) 
Altogether  Westermarck  enumerates  some  thirty-six  instances  of  tribes 
practising  polyandry  (p.  450).  To  these  must  be  added  the  people  of 
Langerote  and  Portaventura  in  the  Canary  Islands  in  the  sixteenth  cen- 
tury {Letourneau,  p.  303),  and  in  antiquity  the  Arabs  and  British  (Wester- 
viarck,  p.  454).  The  case  of  the  primitive  Aryans  in  India  is  doubtful. 
The  two  Aswins  in  the  Rig  Veda  win  one  damsel  as  the  prize  of  a  chariot 
race,  and  she  acknowledges  their  "husbandship."  In  the  Mahabharata 
Draupadi  is  won  by  the  eldest  of  five  Pandava  princes  and  becomes  the 
wife  of  them  all,  but  her  father  describes  this  as  "an  unlawful  act,  con- 
trary to  usage  and  the  Vedas."  The  princes  plead  as  precedent  the  case 
of  a  "most  excellent  moral  woman,"  who  dwelt  with  seven  saints,  and  of 
Varski,  who  cohabited  with  ten  brothers  "whose  souls  had  been  purified 
with  penance."  Maijne  ("Hindu  Law  and  Usage,"  p.  64)  points  out 
that  these  were  bad  precedents,  being  cases  of  saints  who  were  above  ordi- 
nary laws.  He  adds  that  in  the  Ramayana  polyandry  is  mentioned  ^^^th 
al)horrence,  and  sums  up  in  favour  of  the  view  that  sexual  looseness  rather 
than  recognized  polyandry  is  indicated.      {Mayne,  p.  65,  4th  ed.) 

In  Sparta  a  secondary  husband  was  sometimes  tolerated  for  the  sake 
of  increasing  the  family.  .  .  .  {Xeiiophon,  "Rep.  Lac,"  i.  9,  quoted  in 
Grote,  Part  II.,  chap.  vi.  p.  520.) 


240  PEKSONS  [Part  II. 

actually  found  in  a  leading  case.  Among  the  Central  Australian 
tribes  two  types  of  marriage  custom  have  been  distinguished  by 
Messrs.  Spencer  and  Gillen.  The  first  which  specially  concerns 
us  is  that  practised  among  the  Urabunna.  The  tribe  is  divided 
into  two  classes,  and  these  classes  are  exogamous  —  that  is  to  say, 
a  man  must  not  marry  within  his  class,  but  must  choose  his  wife 
from  the  other.  Secondly,  there  are  distinct  totems  within  the 
tribe,  and  these  are  similarly  exogamous.  Thirdly,  each  of 
the  two  classes  is  divided  into  four  groups,  and  in  choosing  a  wife 
a  man  is  restricted  to  one  of  these  groups.  How  the  group  di- 
vision is  arrived  at  need  not  concern  us  for  the  present.  The 
point  is  merely  that  there  exists  for  any  given  group  of  men  a 
definite  group  of  women  with  whom  they  may  marry,  and  who  are 
called  their  Nupas.  So  far,  then,  our  result  is  that  there  are  in 
the  tribe  a  group  of  men  and  of  w^omen  who  are  Nupa  to  each 
other  —  that  is,  potential  husbands  and  wives.  To  come  now  to 
the  actual  marriage,  a  man  will  have  one  or  more  of  his  Nupas 
assigned  to  him  as  his  wives.  He  will  also  have  others  to  whom  he 
is  Piriaungaru  —  that  is,  he  has  access  to  them  under  certain 
conditions.  Similarly  a  woman  may  be  Piriaungaru  to  several 
men,  and  lastly  a  man  may  lend  his  wife  to  any  of  her  Nupas,  and 
on  the  occasion  of  a  visit,  for  example,  is  expected  as  a  matter  of 
courtesy  and  good  feeling  to  do  so.  Thus  the  husband  has  only, 
so  to  say,  a  preferential  right  in  his  wife,  and  the  wife  in  the  hus- 
band. The  husband  will  have  a  secondary  right  to  other  women 
as  his  Piriaungaru,  while  his  wives  are  in  turn  Piriaungaru  to 
other  men.^ 

1  In  the  Dieri  tribe  there  is  both  individual  and  group  marriage.  In 
the  latter  ease  the  headman  allots  certain  men  and  women  (subject  to  the 
elan  or  totem  restriction)  to  one  another  as  Pirauru,  but  their  rights,  as  the 
different  husbands  and  wives  are  often  members  of  different  local  groups, 
are  exercised  mainly  when  the  groups  meet.  When  they  separate  the  right 
of  the  Noa  or  principal  husband  predominates.  {A.  W.  Howitt,  "The 
Organization  of  Australian  Tribes,"  Transactions  of  Royal  Society  of 
Victoria,  vol.  i.,  pt.  ii.,  pp.  124-7.) 

The  custom  of  the  Arunta  and  other  Central  Australian  tribes  is  still 
further  removed  from  a  true  group  marriage,  as  here  there  are  no  Piria- 
ungaru. A  woman  is  restricted  to  one  man  unless  he  lends  her.  What 
suggests  group  marriage,  apart  from  the  nomenclature  of  relationships, 
is  (1)  that  the  name  for  "wife  is  the  group  name  Unawa,  the  term  (corre- 
sponding to  Nupa)  applied  to  all  women  of  the  class  with  whom  the  man 
may  lawfully  marry ;  (2)  that  -wives  are  freely  lent  within  the  group  and 
enjoyed  promiscuously  at  festivals.  How  much  stress  is  to  be  laid  on 
this  is  not  easy  to  determine.  It  is  certain  that  the  class  restrictions  on 
marriage  are  held  much  more  vital  by  most  savages  (whatever  their 
marriage  customs)  than  the  marriage  tie  itself.  Among  the  Australians 
Messrs.  Spencer  and  Gillen  remark  that  jealousy  is  little  developed, 
adultery  is  at  most  an  infringement  of  rights  of  property  (so  also  among 


Chap.  XII.]  WOMEX   IX   PRIMITIVE   SOCIETY  241 

Now  as  it  stands  this  scheme  of  marriage  may  be  classified  as 
a  form  of  polyandry  combined  with  polygamy,  such  as  we  have 
already  met  with  among  the  Xairs,  only  complicated  by  the  taboos 
which  limit  the  intercourse  of  the  sexes  to  the  two  groups  which 
are  Xupa  to  each  other.  It  is  possible  to  explain  the  system  as 
the  relic  of  earlier  customs  where  the  two  Xupa  groups  were 
actually  married  to  each  other,  so  that  intercourse  between  them 
would  be  promiscuous.     This,  however,  is  an  inference  as  to  the 

North  American  Indians,  see  Waitz,  iii.  p.  131),  wife  lending  is  habitual, 
and  divorce  is  easy.  Under  these  circumstances  the  verj^  use  of  the  term 
marriage  can  only  be  justified  by  the  difficulty  of  finding  any  other.  It 
is  not  marriage  as  we  understand  the  relation,  and  the  tie,  whatever  we 
call  it,  is  exceedingly  loose.  On  the  other  hand,  the  taboos  which  mark 
out  special  classes  for  each  other  are  among  the  most  sacred  laws  of  the 
tribe.  Generally  speaking,  these  restrictions  are  of  a  negative  character 
—  a  man  must  not  marry  within  his  totem,  or  his  clan,  but  sometimes, 
owing  to  the  multiplication  of  restrictions,  particularlj'  in  the  form  of 
classificatory  relationships  (of  which  the  Australian  class  divisions  are 
really  a  case),  the  result  is  to  confine  the  intending  spouse  to  a  specific 
group.  This  group  vvill  then  consist  of  his  Nupa  or  Unawa,  and  so  it  is 
easy  for  him  to  change  his  wife  within  the  group  and  impossible  for  him 
to  take  one  outside  it ;  and  as  this  applies  to  all  the  men  and  all  the  women 
we  may  say  that  the  two  groups  are  more  strictly  bound  together  than 
any  individuals  within  it,  and  this  we  may,  if  we  please,  term  group 
marriage.  But  the  expression  is  undesirable  unless  deliberately  intended 
to  suggest  the  theory  of  an  earlier  form  in  which  men  and  women  were 
actually  united  by  groups. 

The  real  importance  of  these  isolated  and  partial  illustrations  of  group 
marriage  lies  in  their  association  with  the  classificatory  system  of  counting 
kinship.  In  name,  an  Australian  has  not  one  father,  but  a  gi'oup  of 
fathers,  i.e.  all  the  potential  husbands  of  his  mother;  not  one  brother, 
but  a  group  of  brothers,  i.e.  all  the  sons  of  his  potential  fathers,  and  so 
on.  This  system  of  naming  is  wdeh'  spread  in  parts  of  the  world  where 
there  is  little  or  no  trace  of  group  marriage.  Those  who  uphold  group 
marriage  argue  (1)  that  this  method  of  reckoning  Idnship  is  the  only  pos- 
sible method  where  group  marriage  exists,  (2)  that  no  other  satisfactory 
explanation  of  its  origin  and  meaning  has  ever  been  put  forward,  (.3)  that 
we  can  understand  its  existence  where  individual  marriage  now  prevails 
if  we  suppose  gi'oup  marriage  to  have  existed  pre\aously.  If  this  is  granted 
it  is  tempting  to  argue  further  to  a  general  theory  of  the  origin  of  marriage, 
according  to  which  its  history  would  begin  (1)  with  the  temporary  mating 
of  a  man  and  woman.  This  would  be  restricted  (2)  by  a  tal)oo  on  all 
women  recognized  as  of  the  same  blood  or  of  the  same  totem  —  the  con- 
ception of  unity  being  in  any  case  magical  —  as  the  man.  This  would 
yield  group  marriage  ■with  such  imperfect  individual  appropriation  as  we 
find  among  the  Urabunna,  and  then  would  develop  (3)  into  a  more  per- 
manent appropriation  of  certain  women  to  a  man  or  men.  But  these 
considerations  lead  into  a  region  of  hypothesis  which  lies  outside  the  plan 
of  the  present  work,  the  object  of  wliich  is  to  analyze  and  compare  insti- 
tutions which  we  find,  not  to  postulate  institutions  which  we  do  not  find. 

Cases  in  which  a  man  marries  his  wife's  sisters  or  possibly  certain  other 
relatives  along  with  her  are  partial  developments  of  polygamy  rather  than 
group  marriages,  and  the  institution  of  the  Omaha,  quoted  by  Kohler 
("Z.  f.  V.  R.,"  1897,  p.  320)  as  a  case  of  group  marriage,  where  a  man 
marries  the  aunt  and  sister  or  niece  of  his  wife,  while  on  his  death  the 
widows  pass  to  his  brothers,  is  a  combination  of  this  form  of  polygamy 
with  the  levirate. 


242  PERSONS  [Part  II. 

probability  of  vrhlch  others  must  determine.  What  we  actually 
find  is  not  this  marriage  of  two  groups,  but  exceedingly  loose  re- 
lations, polygamous  and  polyandrous,  within  the  groups  combined 
with  strict  taboo  outside  them. 

Where  the  marital  relation  becomes  very  loose  we  approach 
promiscuity,  or  the  sheer  negation  of  marriage,  as  between  all 
who  are  not  separated  from  each  other  by  any  taboo.  If  such 
taboos  also  fail,  we  get  complete  promiscuity.  Does  this  exist? 
Dr.  Westermarck^  enumerates  some  thirty-one  cases  in  which  it 
has  been  alleged.  But  in  the  majority  of  these  it  is  also  denied 
by  other  authorities,  and  in  several  the  allegation  is  known  to  be 
false.  There  remain  a  number  of  cases  in  which  the  marital  rela- 
tion is  so  loose  that  the  husband  sinks  into  the  position  of  a  lover, 
temporarily  visiting  the  woman's  house  and  readily  dismissed  at 
will.  Sheer  promiscuity  is  probably  to  be  regarded  rather  as 
the  extreme  of  looseness  in  the  sexual  relation  than  as  a  positive 
institution  supported  by  social  sanctions.^ 

4.  The  looser  types  of  marriage  are  almost,  if  not  entirely,  con- 
fined to  savage  and  barbarous  races.  It  is  here  if  anywhere  that 
we  find  promiscuity  and  group  marriage.  It  is  here,  certainly, 
that  we  find  the  marital  relationship  so  loose  as  to  approach 
promiscuity  and  group  marriage.  It  is  here  also  that  we  find 
polyandry  —  a  custom  practised  by  no  people  with  any  pretension 
to  civilization  except  the  Thibetans  and  the  ancient  Spartans. 
Polygamy,  on  the  other  hand,  while  also  very  common  among  un- 
civilized peoples,  may  be  said  to  dominate  the  middle  civilizations, 
and  monogamy  the  higher.  But  here  we  must  guard  against  too 
sweeping  statements.  INIonogamy,  and  a  strict  monogamy  too, 
is  found  in  several  quite  savage  peoples,  including  among  them 

'  Westermarck,  pp.  52-55. 

-  The  statement  of  Herodotus  about  the  Massagetae  (Bk.  i.  chap.  216) 
and  of  Cosmas  of  Prague  (eleventh  century  a.d.)  about  the  ancient  Bohe- 
mians are  reducible  to  this.  Cosmas  writes,  "Connubia  erant  communia. 
Nam  more  peeudum  singulas  ad  noetes  novos  probant  hymenaeos,  et 
surgente  aurora  .  .  .  ferrea  amoris  rumpunt  vincula."  (Kovalewsky, 
"Modern  Customs  and  Ancient  Laws  of  Russia,"  p.  10.)  Post  gives  as 
instances  of  peoples  among  whom  "marriage  relations  are  almost  unrec- 
ognizable." tribes  of  California  and  the  coast  of  Venezuela,  aborigines  of 
Brazil  and  some  Peruvian  tribes,  six  instances  in  Oceania,  three  in  India, 
and  foiu-  in  Africa.  ("Ethn.  Jm-isprudenz,"  i.  52.)  He  adds  fm-ther 
instances,  making  seven  in  all  for  Africa.  ("Afrik.  Jurisp.,"  p.  301.) 
Among  the  Wintuns  of  California,  according  to  Powers,  a  man  generally 
pays  nothing  for  his  wife,  but  merely  "takes  up  with  her."  If  (not 
being  a  headman)  he  takes  a  second  wife,  the  two  wives  fight  till  one  is 
driven  out,  while  the  husband  looks  on  and  abides  in  the  lodge  of  the 
conqueror  or  follows  the  vanquished  as  he  chooses.  ("Tribes  of  Califor- 
nia," p.  238.)     Can  this  relation  be  called  marriage? 


Chap.  XII.]  WOMEN   IN    PRIMITIVE   SOCIETY  243 

some  of  the  very  lowest.  The  Veddahs  and  Andamanese  have 
been  mentioned.  Elsewhere  it  occurs  sporadically,  it  is  impossible 
to  see  for  what  specific  reason,  among  races  which  are  generally 
polygamous.  Thus  polygamy  and  easy  divorce  are  both  general  * 
throughout  Oceania,  but  among  the  Dorians  of  Xew  Guinea 
there  is  neither  polygamy  nor  concubinage.  Among  the  Indian 
hill  tribes  there  are  several  instances.  Some  of  the  Naga  tribes 
are  monogamous,  some  polygamous.  The  Karens  have  only  one 
wife;  the  Santals  take  a  second  only  if  necessary  to  obtain  an 
heir;  but  in  all  these  cases  divorce  is  allowed.  The  Kukis  are 
polygamous,  but  the  people  called  the  Old  Kukis  keep  to  one  wife. 
^Monogamy  occurs  among  some  of  the  ruder  Malayan  tribes.  Of 
the  Central  Asian  peoples  the  Kara  Tangut  nomads  are  mentioned 
by  Ratzel  as  monogamous.  Monogamy  is  rare  among  the  North 
American  Indians,-  but  it  occurs  in  a  few  tribes  of  South  America.^ 
Polygamy  is  the  general  rule  among  the  Negro  and  Bantu  races, 
but  instances  of  monogamy  are  found  among  peoples  of  Northern 
Africa  as  the  Touaregs  and  the  Beni  Mzab. 

We  shall  understand  the  occurrence  of  such  exceptions  better 
if  w^e  bear  in  mind  what  precisely  is  meant  both  by  monogamy 
and  by  polygamy  when  these  institutions  are  attributed  to  a  rude 
tribe.  Whether  monogamous  or  polygamous,  savage  tribes  usually 
tolerate  divorce  on  very  easy  terms,  especially  for  the  husband. 
But  the  division  between  a  form  of  monogamy  which  easily  admits 
a  change  of  wives  and  sheer  polygamy  is  no  ^'ery  deep  one.  On  the 
other  side,  it  is  to  be  observed  that  though  polygamy  in  one  form 
or  another  is  ordinarily  permitted  in  uncivilized  races,  it  must  not 
be  supposed  to  be  the  rule  among  many  peoples.  Generally  speak- 
ing, the  numbers  of  the  sexes  are  approximately  equal.  There  are 
exceptions  to  this  in  certain  races  which  partly  account  for  the  ab- 
normal development  of  polygamy  among  them,  but  where  the 
relative  numbers  are  normal  it  follows  as  a  matter  of  arithmetic 
that  either  monogamy  must  be  the  prevalent  practice,  or  a  great 
number  of  men  must  go  without  wives.  In  point  of  fact,  poverty, 
as  well  as  law  or  custom,  fights  on  behalf  of  monogamy.     It  is  in 

1  Kohler  states,  however,  that  among  Papuan  tribes  polygamy  is  some- 
times permitted  only  with  the  consent  of  the  first  wife.  {Kohler,  "Z.  f.  V. 
Rwt.,"  1900,  p.  349.) 

2  Instances  are  the  Yuroks  of  California,  and  the  Karoks  — among 
whom  bigamy  is  not  tolerated  even  in  a  chief,  and,  what  is  still  rarer,  a 
man  may  own  as  many  women  for  slaves  as  he  can  purchase,  but  cohabi- 
tation \\-ith  more  than  one  brings  obloquy  (Powers,  p.  22)  —  and  the 
Klamaths  (ib.,  p.  405).     For  other  eases  see  Westermarck,  p.  435. 

^Schmidt,  "Z.  f.  V.  R.,"  1S98,  p.  304,  enumerates  five  instances. 


244  .  PERSONS  [Part  II. 

most  cases  only  the  comparatively  rich  and  powerful  who  have  a 
large  harem,  and  this  is  one  reason  among  others  why  polygamy 
is  less  developed  in  the  lowest  races,  and  the  possession  of  many 
wives  comes  about  when  wealth  and  population  are  alike  growing. 
When  we  speak  of  polygamy  being  the  normal  custom  of  uncivilized 
races,  therefore,  we  mean  the  permission  of  polygamy,  and  it  is 
this  permission  that  exists  almost  everywhere  throughout  the 
savage  and  barbaric  world  and  among  the  lower  civilizations.  We 
should,  then,  distinguish  between  an  ethical  monogamy,  based 
on  the  belief  that  it  is  wrong  to  have  more  than  one  wife,  and  an 
habitual  monogamy,  based  on  the  practical  difficulty  of  obtaining 
and  maintaining  more  than  one  wife.  Where,  owing  to  general 
poverty  and  the  equality  of  conditions  —  which  would  bar  the 
making  of  exceptions  in  favour  of  rich  men  or  chiefs  —  the  practice 
of  monogamy  has  become  universal,  and  as  such  is  of  long  standing, 
it  would  harden  into  a  custom  (sustained  by  whatever  sanctions 
are  recognized)  without  implying  any  very  great  advance  in 
the  ethical  conception  of  marriage.  And  this  may  account  for 
some  of  the  cases  mentioned,  and  in  particular  for  the  point  often 
noted,  that  it  is  the  ruder  tribe  which  is  monogamous,  while  the 
growth  of  wealth  in  neighbouring  peoples  enables  richer  individuals 
to  indulge  in  a  harem. ^  We  shall  not,  then,  be  far  wrong  in  con- 
cluding that  polygamy,  limited,  often  very  narrowly,  by  poverty 
and  the  relative  numbers  of  the  sexes,  is  the  prevalent  type  of 
marriage  in  uncivilized  society.^  Of  the  development  in  the 
civilized  world  we  shall  speak  more  in  detail  later  on.^  Polyandry, 
on  the  other  hand,  is  by  comparison  an  exceptional  practice,  the 

1  Travellers  and  ethnologists  sometimes  describe  people  as  monogamous 
who  in  fact  are  so  only  by  prevailing  habit.  The  Iroquois,  for  instance, 
always  figure  among  monogamous  peoples,  and  no  doubt  that  form  of 
marriage  prevailed  ^vith  them  and  became  the  strict  rule.  Thus  Morgan 
("League  of  the  Iroquois,"  p.  324)  states  that  polygamy  was  forbidden 
and  never  became  a  practice,  but  from  Coldan's  account  given  in  School- 
crafty  work,  i.  221,  it  appears  that  it  existed,  though  rarely  practised,  in 
his  time.  Repeatedly  we  hear  that  the  mass  of  the  people  are  monog- 
amous, but  that  the  chiefs  or  the  wealthier  tribesmen  have  several 
wives  or  concubines.  This  was  the  case  with  the  ancient  Germans. 
Polygamy  was  rare  in  practice,  but  was  legal. 

^  Dr.  Westermarck  (p.  435)  enumerates  in  all  between  forty  and  fiftj' 
cases  of  sayage  and  barbarian  tribes  which  are  monogamous.  Many  of 
these  are  single  tribes,  which  are  exceptions  to  the  general  rule  among 
their  kindred  and  compatriots.  It  seems  to  be  only  among  the  Hill 
Tribes  of  India  and  the  Malay  region,  which  are  rich  in  varieties  of  mar- 
riage customs,  that  any  number  of  monogamous  tribes  are  found.  Post 
("Eth.  Jiu-is.,"  i.  58,  59),  after  pointing  out  that  innumerable  peoples  live 
in  practical  monogamy,  adds,  "Eine  wirkliche  Zwangsmonogamie  ist 
eine  verhaltnissmiissig  seltene  Erscheinung." 

^  [In  Chapter  XV  of  this  volume.] 


Chap.  XII.]  WOMEN   IN    PRIMITIVE   SOCIETY  245 

principal  causes  of  which  are  most  probably  poverty  and  a  de- 
ficiency in  the  number  of  women.  On  the  evidence  before  us  it  is 
hardly  to  be  described  as  an  institution  belonging  to  one  of  the 
great  types  of  social  organization. 

5.  II.  Impediments  to  Marriage. 

A  quite  distinct  classification  of  marriage  s\i;ems  could  be  made 
on  the  basis  of  the  prohibitions  which  almost  everywhere  restrict, 
in  greater  or  less  degree,  the  choice  of  a  husband  or  wife.  These 
prohibitions  exhibit  a  rich  variety  of  differences,  and  their  meaning 
and  origin  are  extremely  obscure.  We  have  already  noted  that 
they  fall  into  two  great  divisions.  On  the  one  hand,  there  are 
restrictions  forbidding  marriage  within  a  certain  group  —  laws 
of  exogamy ;  on  the  other,  and  quite  possibly  among  the  same 
people,  there  are  rules  forbidding  it  outside  a  certain  group  —  laws 
of  endogamy.  Both  kinds  of  restriction  appear  in  a  great  variety 
of  forms.  Thus  endogamy  may  take  the  form  of  prohibition  to 
marry  outside  the  clan,  as  in  old  days  among  the  gypsies,^  or  the 
caste  as  in  India,  or  even  the  family.  In  the  ancient  world  for- 
eigners could  rarely  intermarry  unless  their  respective  states  had 
the  jus  connubii,  and  there  were  generally  barriers  on  tiie  inter- 
marriage of  slave  or  serf  with  free  men  or  women,  and  a  social,  if 
not  a  legal,  bar  on  the  marriage  of  noble  and  commoner.  In  the 
modern  world  legal  barriers  have  for  the  most  part  disappeared, 
and,  socially  speaking,  equality  in  education  alone  is  exacted.- 
Far  more  various  and  difficult  to  understand  are  the  rules  of 
exogamy.  iMarriage  may  be  forbidden  within  the  totem,  as 
among  many  North  American  Indians  and  some  Australian 
tribes ;  within  the  clan,  as  among  the  Xagas  ^  and  Somali,^  etc. ; 
within  the  village,  as  among  the  Battas  ^ ;  or  the  tribe,  as  in  Ro- 
tuma.^  It  may  also  be  prohibited  within  the  kindred,  and  here 
again  great  differences  appear.     All  the  kindred,  so  far  as  rela- 

1  Post,  "Grundriss,"  i.  33.  See  ib.  for  several  instances  in  which  it  is 
the  duty  of  relations  to  marry.  I  am  not  clear  that  it  is  distinctly  for- 
bidden to  marry  another  than  a  relation. 

2  There  are  exceptions,  such  as  the  prohibition  of  marriage  with  negroes 
in  twenty-two  of  the  United  States,  with  Indians  in  four  states,  with 
Mongohans  foiu-  states.  ("Parly.  Papers,  Miseell.,"  No.  2,  1894,  p.  155.) 
Otherwise  the  intermarrjang  of  royal  families  is  the  principal  exception. 
In  the  German  code  the  marriage  of  a  high  noble  with  a  commoner  involves 
certain  disabilities.      {Westermarck,  373.) 

3  Codden,  "J.  A.  I.,"  xxvi.  173. 

*  Post,  "A.  J.,"  i.  383.  5  Waitz,  v.  i.  186. 

«  Gardiner,  "J.  A.  I.,"  xxvii.  478.  There  appear  to  be  sporadic  cases 
of  prohibition  within  the  same  caste,  or  the  same  religious  division.  See 
Post,  "Grundriss,"  i.  41. 


246  PEESONS  [Part  II, 

tionship  is  traceable,  may  be  prohibited,  as  among  the  Andamanese 
and  the  Yoruba.^  Or  the  prohibition  may  be  applied  to  all  the 
kin  on  that  side  to  which  the  greater  importance  is  attached,  as 
in  the  Brahmanic  and  Chinese  prohibitions.^  Where  relation- 
ships are  of  the  "  classificatory "  type,  e.g.  where  the  mother  and 
all  her  sisters  are  addressed  by  the  same  name,  while  the  daughters 
of  all  that  group  of  women  again  have  one  form  of  address  in  com- 
mon, the  prohibition  of  marriage  may  extend  to  all  members  of 
the  group,  and  society  will  divide  itself  into  classes  within  which  a 
man  may  marry,  and  classes  within  which  the  women  are  strictly 
taboo  to  him.  This  class  division  of  society  runs  through  the  Aus- 
tralian peoples.^  Again,  kinship  may  be  reckoned  by  degrees,  as 
among  ourselves,  and  exogamy  may  be  enjoined  for  certain  degrees 
only,  while  beyond  them  marriage  is  permitted.  In  point  of  fact, 
under  one  rule  or  another,  prohibition  of  marriage  within  the  first 
and  second  degrees  (parent  and  child,  or  brother  and  sister)  is 
almost  universal,  if  we  take  account  only  of  the  basis  of  relation- 
ship recognized  by  any  given  people.  Thus,  if  the  totem  is  exog- 
amous,  and  passes  by  mother-right,  all  kindred  through  the 
mother  will  be  excluded  from  marriage,  but  brother  and  sister 
by  the  same  father  will  be  no  relations,  and  may  intermarry. 
Indeed,  if  the  principle  is  carried  to  its  logical  conclusion,  the  same 
will  be  true  of  father  and  daughter.  On  the  other  hand,  the 
totemic  prohibition  may  be  eked  out  by  a  custom  forbidding  or 
discouraging  the  marriage  of  near  relations  as  such.  Thus,  in 
New  Britain  we  are  told  that  though  legally  a  man  may  marry 
his  brother's  daughter,  since  she  is  not  of  his  totem,  yet  in  point 
of  fact  such  unions  excite  great  repugnance.^  Apart  from  cases 
in  which  kinship  is  only  reckoned  on  one  side,  so  that  intermarriage 
is  allowed  within  the  half-blood,  the  permission  of  incest  within 
the  nearest  degree  appears  very  rare.  Indeed,  with  this  reser- 
vation we  may  say  that  the  nearer  the  relationship  (counting  that 
of  the  son  to  his  mother  as  closer  than  that  of  daughter  to  father), 

1  Man,  "J.  A.  I.,"  xii.  126.  Ellis,  " Yoruba-spealdng  Peoples,"  p.  176. 
The  Andamanese  recognize  adoption  and  affinity  as  bars,  but,  through 
want  of  records,  fail  to  trace  kinship  beyond  the  third  generation.  {Man, 
"J.  A.  I.,"  xii.  127.) 

2  If  the  clan  is  based  on  father-right,  it  will  be  seen  that  the  prohibition 
to  marry  an  agnate  is,  at  least  in  theory,  equivalent  to  prohibition  of 
marriage  within  the  clan.  Identity  of  name,  again,  is  taken  as  equiv- 
alent to  common  membership  of  a  putative  clan. 

3  Among  53  peoples  examined  by  Tylor,  who  count  relationship  on  the 
classificatory  system,  33  are  at  present  exogamous.  ("J.  A.  I.,"  xviii. 
264.) 

*  Banks,  "J.  A.  I.,"  xviii.  283. 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  247 

the  rarer  is  the  failure  to  prohibit.^  Such  faikire  probably  occurs 
most  often  in  consequence  of  a  strongly  endogamous  tendency, 
in  the  form  of  a  desire  to  maintain  purity  of  blood.  Hence  we 
find  cases  of  in-and-in  breeding  among  royal  families,  e.g.  in 
ancient  Persia  and  Egypt,  and  among  high  castes  as  the  L  litaos 
of  Tylicronesia.-  But  the  prohibitions  may  be  carried  far  beyond 
the  first  and  second  degrees.  The  Roman  Church  still  forbids 
marriage  to  third  cousins,  and  the  attempt  was  made  to  carry  it 
much  further.  Again,  relationship  may  or  may  not  be  consti- 
tuted by  marriage.  In  many  cases  a  son  inherits  his  father's 
wives,  with  the  exception  of  his  own  mother,  along  with  the 
rest  of  the  family  property.  We  find  the  Jewish  legislators,  and, 
later,  INIohammed,  setting  themselves  against  this  practice.  On 
the  other  side,  rules  of  affinity  may  be  construed  as  severely  as 
those  of  blood  relationship.  On  this  method  an  immense  extension 
of  the  forbidden  degrees  was  effected  by  the  mediaeval  church,^ 
which  was  still  further  widened  by  the  creation  of  a  spiritual  affinity 
between  god-parents  of  the  same  child.  The  efi^ect  of  this  complex 
mass  of  prohibitions  was  such  that  hardly  any  marriage  was  clearly 
valid,  while  dispensations  were  and  still  are  attainable  allowing 
unions  even  between  uncle  and  niece.  Protestantism  swept 
away  this  mass  of  prohibitions,  and  for  the  most  part  allowed 
marriage  of  first  cousins,  and  confined  the  restrictions  of  affinity 
to  the  direct  line.^ 

Of  these  very  various  rules  it  seems  possible  to  say  three  things 
generally.  The  first  is  that  they  tend  to  bar  marriage  between 
people  who  are  bound  together  by  some  other  important  relation. 
Thus  the  totem  or  the  clan,  which  is  exogamous,  is  also  as  a  rule 

1  The  marriage  of  father  and  daughter,  as  well  as  that  of  brother  and 
sister,  is  said  to  be  allowed  among  the  Aleuts.  {Reclus,  65.)  According 
to  Post,  "A.  J.,"  i.  382,  there  is  no  case  in  which  incest  with  a  mother  is 
allowed  in  Africa,  but  among  the  Wanyoro,  sister  and  even  daughter  mar- 
riage occur.  Incest  between  parents  and  children  is  also  found  in  some 
South  American  tribes.  (Starcke,  "The  Primitive  Familv,"  224.  Cf. 
Schmidt,  "Z.  f.  V.  R.,"  1898,  p.  304.)  Among  some  of  the  Veddahs  the 
younger  sister  is  the  regular  wife.  (Sarasin,  "Ergebnisse  naturwissen- 
schaftlicher  Forsehungen  auf  Ceylon,"  iii.  465,  quoting  Bailey.) 

-  Sister  marriage  was  common  in  ancient  Egypt.  (TT.  Max  Muller, 
" Liebespoesie  der  alten  ^gypten,"  pp.  7-8,  and  Waitz,  v.  ii.  111.)  For 
other  instances  see  Westermarck,  290. 

3  See  Huth,  "Marriage  of  Near  Kin,"  117.  Huth  (op.  cit.,  120)  instances 
the  repudiation  of  Ingeburga  of  Denmark  by  Philip  Augustus,  on  the 
ground  that  she  belonged  to  a  family  which  had  pre\'iously  intermarried 
with  the  family  of  Philip's  first  wife.  It  is  fair  to  say  that  in  this  in- 
stance the  Pope  procured  Ingeburga's  restoration. 

*  The  English  prohibition  of  marriage  with  the  wife's  sister  is  the  most 
conspicuous  exception. 


248  PERSONS  [Part  II. 

bound  in  a  kind  of  brotherhood  to  mutual  assistance.  Secondly, 
the  particular  relation  which  is  the  commonest  bar  is  that  based  on 
blood  kinship.  Thirdly,  the  violation  of  the  rules  of  exogamy, 
whatever  they  are,  is  generally  regarded  with  peculiar  horror.  It  is 
often  an  object  of  public  vengeance  when  no  other  crimes,  except 
perhaps  that  of  witchcraft,  have  been  raised  to  that  dignity,  and 
in  the  civilized  world  the  intensity  of  feeling  which  it  excites  in  no 
way  diminishes. 

6.  Notwithstanding  the  great  variation  in  the  forms  which  it 
takes,  the  exogamic  impulse  seems  to  perform  certain  functions 
which  are  fairly  constant.  Thus  (1)  it  checks  in-and-in  breeding, 
both  intermarriage  with  near  kin,  and  often  in  the  lower  races 
marriage  within  the  narrow  limits  of  the  clan  or  village,  which  in 
their  isolation  would  otherwise  become  entirely  filled  with  people 
related  to  one  another  by  a  network  of  cousinship.  What  pre- 
cisely are  the  physical  disadvantages  of  in-and-in  breeding  or  the 
advantages  of  crossing  are,  however,  harder  to  say  than  is  popu- 
larly supposed,  and  it  is  probable  that  this  biological  side  of  the 
matter  is  the  least  important  of  the  functions  served  by  exogamy.^ 
But  (2),  as  indicated  above  (Chap.  11.),^  it  has  the  important  so- 
ciological function  of  binding  distinct  groups  together.  (3)  A 
third  function  of  more  importance  in  the  civilized  world  is  of  a 
distinctly  ethical  character.  For  us  the  prohibition  of  incest  is  the 
only  form  of  exogamy  which  persists,  and  incest  is  a  crime  which 
affects  us  with  a  horror,  of  the  kind  we  call  instinctive,  and  which  is 
certainly  not  weaker  in  civilized  than  in  barbarous  humanity. 
What  is  the  meaning  of  this  horror?  It  is  too  real  and  deeply 
rooted  to  be  explained  as  a  survival.  It  is  not  based  on  tradition 
and  convention,  for  it  is  not  felt  in  relation  to  many  crimes  which 
the  laws  forbid.  Thus,  among  peoples  who  accept  the  law  of  the 
Roman  Church  the  marriage  of  cousins  is  forbidden,  but  fre- 
quently occurs.  In  our  own  country  men  may  approve  or  condemn 
marriage  with  a  deceased  wife's  sister,  but  any  one  who  should  put 
it  on  a  par  with  incest  with  a  blood-sister  would  be  a  very  abnor- 
mally constituted  person.  Is  the  horror,  then,  of  incest  instinc- 
tive ?  T1t«  usual  objections  to  this  view  are  based  on  a  misunder- 
standing of  instinct.  It  is  said  that  the  horror  is  not  universal, 
and  that  the  objects  to  which  it  is  directed  differ  widely  in  different 

'  See  the  evidence,  especially  that  of  Mr.  G.  H.  Darwin,  collected  in 
Huth's  "Marrias:e  of  Near  Kin,"  chap.  viii. 
2  [Of  the  original  work.] 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  249 

peoples.  But  many  instincts  in  the  animal  kingdom  fail  in  uni- 
versality and  are  modifiable  in  their  application.  And,  as  we  have 
seen,  what  is  instinctive  or  hereditary  in  human  nature  becomes 
more  and  more  a  feature  of  character,  a  tendency  or  disposition 
to  feel  or  act  which  obtains  its  actual  direction  from  experience, 
and  especially  from  education  and  social  tradition.  Hence,  to 
say  that  the  horror  of  incest  is  instinctive  is  merely  to  say  that 
there  is  in  it  something  rooted  in  the  character  which  the  average 
man  inherits,  but  it  still  remains  to  determine  what  that  something 
is  and  to  understand  how  it  can  be  developed  in  such  a  variety 
of  ways.  Analysis  of  the  feeling  itself  seems  to  justify  the  ^'iew  of 
Lotze  that  it  is  the  mind's  protest  against  the  blending  of  two 
distinct  attitudes  towards  the  same  person.  Sexual  love  and 
parental  love  have  an  element  in  common,  or  we  should  not  use 
the  term  love  of  them  both,  but  in  other  respects  they  are  as  in- 
compatible as  oil  and  vinegar.  Even  love  and  hate  have  something 
in  common,  an  intense  magnetized  interest  in  the  personality  of 
another.  But  love  and  hate  cannot  fuse.  The  one  is  the  enemy 
of  the  other,  and  so  is  it  also  with  the  two  fundamentally  opposed 
forms  of  attachment.  That  this  is  so  is  a  truth  about  human  re- 
lationships based  on  human  nature,  and  in  that  sense  the  outcome 
of  an  instinct.  But  like  other  truths  of  the  same  kind  it  is  not 
to  be  explained  by  calling  it  an  instinct,  but  by  analyzing  its 
nature  and  explaining  its  function.  That  function  has  been,  in 
earlier  stages,  to  draw  families  together  into  society,  and  at  all 
stages  to  keep  distinct,  and  therefore  in  healthy  development, 
the  deepest  affections  of  mankind.  The  earlier  function  being 
now  superfluous,  laws  of  exogamy  tend  to  confine  themselves  to 
restraint  on  the  marriage  of  that  near  kindred  between  whom 
strong  relations  and  affections  —  incompatible  with  sex  feeling  — 
arise.  This  account  enables  us  to  understand  in  a  general  way 
the  fluctuations  in  the  rules  of  exogamy  and  their  gradual  reduc- 
tion in  the  civilized  world  to  the  familiar  prohibitions.  In  the 
first  place,  the  feeling  against  the  marriage  of  kindred  will  only 
extend  to  the  kindred  recognized.  Hence,  where  mother-right 
holds  we  shall  find  inadequate  provisions  against  marriage  with 
the  paternal  kin.  The  relation  of  the  child  to  its  mother  is  the 
first  strongly  realized,  and  remains  the  most  sacred  of  all  himian 
relations,  and  cases  where  the  breach  of  that  relation  is  tolerated 
are  the  rarest  of  all.  We  may  take  this  relation  as  the  starting 
point  of  the  prohibitions,  and  then  bear  in  mind  that  it  is  all  in 
accordance  with  the  ways  of  primitive  thought  to  extend  them 


250  PERSONS  [Part  II. 

to  everything  indirectly  or  remotely  associated  with  the  tabooed 
relation  —  e.g.  to  the  mother's  children,  her  relatives,  all  of  her 
totem  or  her  name.  The  father  may  come  into  the  account 
independently  through  the  recognition  of  paternity  or  through 
contact  with  the  mother,  and  starting  from  the  paternal  relation 
the  taboo  may  be  extended  in  the  same  way.  The  eccentricities 
of  exogamy,  then,  are  explained  as  arising  (1)  from  an  unduly 
extended  taboo,  (2)  from  an  insufficiently  felt  recognition  of  nat- 
ural relations.  These  are  the  ordinary  faults  of  excess  and  de- 
fect which  characterize  rude  morality,  and  are  on  the  whole  re- 
moved as  civilization  advances. 

Thus,  in  earlier  customs  we  find  rules  of  endogamy  restricting 
marriage  by  clan  or  caste  exclusiveness,  and  of  exogamy  restrict-, 
ing  it  by  rules  bearing  an  indirect  or  irregular  relation  to  the 
natural  feeling  which  we  are  led  to  conceive  as  their  starting  point. 
In  more  civilized  ethics  we  find  the  first  set  of  restrictions  nearly 
annihilated,  and  the  latter  reduced  to  a  simple  expression  of  the 
permanent  feelings  from  which  we  supposed  them  to  emanate. 
In  both  directions  the  more  civilized  ethics  tends  to  discard 
rules  which  hamper  the  free  exercise  of  choice  in  accordance  with 
normal  human  feeling. 

7.  III.    The  Stability  nf  the  Marriage  Relation. 

Not  less  important  than  the  number  of  parties  to  the  union  is 
the  permanence  of  the  marriage  tie,  and  on  this  basis  it  would  be 
easy  to  make  a  classification  cutting  right  across  all  others.  In 
many  of  the  lower  races,  as  we  have  already  seen,  the  dissolution 
of  marriage  is  so  easy  and  frequent  that  it  becomes  a  question 
whether  the  term  marriage  is  at  all  applicable.  In  other  cases  the 
marriage  bond  is  as  strictly  regarded  as  in  the  Roman  Church. 
Here,  again,  we  cannot  find  a  continuous  and  unbroken  develop- 
ment in  any  single  direction,  but  once  more  we  can  with  tolerable 
accuracy  lay  down  that  certain  tendencies  predominate  at  given 
stages  of  culture.  This  will  be  clear  if  once  again  we  begin  by 
distinguishing  the  different  possibilities,  and  then  briefly  indicate 
the  stage  of  culture  at  which  each  is  or  has  been  most  frequently 
realized. 

Divorce  may  (1)  be  perfectly  free  to  either  party ;  (2)  it  may  be 
free  to  both  by  mutual  consent ;  (3)  it  may  be  absolutely  at  the 
will  of  the  husband  or  (4)  of  the  wife.  Next,  (5)  it  may  be  free  to 
one  party  or  both  on  obtaining  the  consent  of  the  family,  the  clan, 
or  a  court ;    (6)  it  may  be  open  to  either  party  on  certain  condi- 


Chap.  XII.]  WOMEN    IN    PRIMITIVE   SOCIETY  251 

tions.  These  conditions  are  infinitely  various,  but  we  ought  to 
distinguish  as  cases  differing  in  principle  (a)  those  in  which  the 
only  condition  is  of  the  nature  of  a  fine,  usually  taking  the  form 
of  forfeiture  of  dowry  or  the  restoration  of  the  bride  price,  and 
(b)  those  in  which  the  essential  condition  is  some  fault  or  defect 
in  the  other  party  to  the  marriage.  Further,  (c)  it  may  be  open 
on  the  same  conditions  to  man  and  wife,  or  (d)  on  different  condi- 
tions. Very  often,  in  fact,  it  is  free  to  the  husband  and  allowed 
under  conditions  to  the  wife.  (7)  It  may  be  wholly  forbidden, 
marriage  being  indissoluble.  In  this  latter  case  a  separation 
a  mensa  et  thoro  is  usually  allowed,  but  sometimes  this  too  is 
forbidden. 

INIarriage  is  indissoluble  among  the  Andamans,  some  Papuans 
of  New  Guinea,  at  Watubela,  at  Lampong  in  Sumatra,  among 
the  Igorrotes  and  Italones  of  the  Philippines,  the  Veddahs  of 
Ceylon,^  and  in  the  Romish  Church. 

Ordinarily,  however,  both  in  the  civilized  and  uncivilized  world 
marriage  may  be  dissolved  either  at  pleasure  or  under  certain 
conditions.  Among  uncivilized  peoples  divorce  is  not  infrequently 
free  to  either  party.  The  man  dismisses  his  wife  without  cere- 
mony, or  the  discontented  or  injured  woman  leaves  her  husband's 
house  without  more  ado  and  runs  back  to  her  own  relations,-  or 
they  part  by  mutual  agreement.^  In  the  higher  stages  of  bar- 
barism and  in  primitive  civilization  the  consolidation  of  the  family 
under  the  growing  power  of  the  husband  tends  to  make  divorce 
rarer  and  more  difficult.  Sometimes  it  drops  almost  entirely  out  of 
use.  Thus  it  was  a  Roman  boast  that  though  divorce  was  not 
legally  impossible  before  the  case  of  Sp.  Carvilius  Ruga  in  B.C.  231, 
no  instance  had  been  known  since  the  foundation  of  the  city. 
Sometimes,  with  less  justice,  the  power  of  divorce  is  left  to  the  hus- 
band and  withheld  from  the  wife.  It  may  even  remain  entirely 
at  the  husband's  pleasure  to  send  back  the  chattel  which  he  has 
bought.  Thus  the  Hebrew  who  found  anything  unseemly  in.  his 
wife  merely  gave  her  a  writing  of  divorcement  and  had  done  with 
her.  In  other  cases  there  was  at  least  a  pecuniary  deterrent. 
The  divorcing  husband  forfeited  the  dowry,  or,  if  the  fault  was  his, 
could  not  regain  the  bride  price.     He  had  to  leave  his  wife  all 

'  I  take  the  foregoing  from  Dr.  Westermarck's  list,  p.  517.  He  quotes 
Wilken's  opinion  that  the  same  held  good  of  the  Xiasians  and  Bataks. 

2  Sometimes  it  is  a  condition  that  she  returns  the  price  paid  for  her, 
e.g.  in  Soulimana  and  frequently  in  Africa.      {Howard,  i.  226.) 

'  Tliis  Post  considers  to  be  the  rule  under  the  elan  organization  of 
society.      {Post,  "Grundriss,"  ii.  117.) 


252  PERSONS  [Part  II. 

the  gifts  he  had  made  to  her,  or,  finally,  if  she  had  no  such  property 
of  her  own,  he  had  to  pay  a  definite  sum.  Again,  if  there  were 
children,  provision  might  be  made  for  their  maintenance,  or  the 
right  of  divorce  itself  might  in  this  case  be  withdrawn.^  Similarly, 
where  the  wife  has  the  right  of  divorce,  she  may  incur  pecuniary 
forfeits,  losing  her  dowry,  or  having  to  repay  the  bride  price  and 
return  the  presents  made  at  or  during  marriage. 

Such  pecuniary  penalties  render  marriage  relatively  stable; 
but  a  further  step  is  taken  when  it  is  dissoluble  only  under  assigned 
conditions.  These  again  show  extraordinary  variations.  The 
husband  is  generally  able  to  divorce  the  wife  for  unfaithfulness, 
very  often  for  sterility,  and  sometimes  ^  because  she  bears  no  sons  ; 
often,  too,  for  disobedience,  bodily  defects,  or  what  are  considered 
moral  failings.  The  wife,  again,  often  has  the  right  of  leaving  the 
husband  in  case  of  neglect,  desertion,  impotence,  or  cruelty  — 
more  rarely  in  case  of  unfaithfulness.  As  a  rule,  the  divorced 
husband  may  marry  again,  but  it  is  not  always  that  the  divorced 
wife  has  this  right,  especially  under  the  system  of  marriage  by 
purchase.  Sometimes  she  is  wholly  prohibited  from  marrying ; 
sometimes  she  must  refrain  till  she  has  the  leave  of  her  former 
lord  and  master. 

The  customs  of  savage  and  uncivilized  peoples  as  to  divorce 
vary  in  such  wild  profusion  that  it  is  very  difficult  to  make  any 
general  statement  with  regard  to  them.  It  may,  however,  be 
said  that,  with  the  few  exceptions  mentioned,  divorce  is  allowed ; 
that  it  is  generally  free  to  the  husband  on  easy  terms,  and  very 
often  also  to  the  wife,  or  to  the  two  parties  by  mutual  agreement,^ 
but  is  sometimes  restricted  to  special  cases,  and  that  the  develop- 
ment of  the  patriarchate,  and  particularly  of  marriage  by  purchase,^ 
tended  to  increase  the  privileges  of  the  husband  as  compared  with 
those  of  the  wife  in  this  relation.^     In  the  Oriental  civilizations, 

^  E.g.  according  to  Post,  "A.  J.,"  i.  434,  among  the  Moorish  tribes 
of  the  Sahara  and  the  Hottentots. 

^  E.g.  in  Burmah.      {Post,  "Grundriss,"  ii.  114.) 

3  In  comparing  the  position  of  husband  and  wife,  it  must  be  borne  in 
mind  that  divorce  almost  universally  sets  the  husband  free  to  marry  again, 
while  the  mfe,  in  a  large  number  of  cases,  especially  under  marriage  by 
purchase,  is  more  or  less  narrowly  restricted  in  this  respect,  so  that  for 
her,  divorce  rather  corresponds  to  what  we  call  separation.  (Howard, 
"A  History  of  Matrimonial  Institutions,"  i.  244,  245.) 

*  Howard,  i.  231,  notes  the  influence  of  wife-purchase  in  this  direction. 

^  Divorce  among  Savages.  —  Divorce  is  apparently  either  quite  free  or 
open  on  very  easy  terms  to  either  party  among  many  North  American 
Indians  (Columbians,  Howard,  i.  238 ;  Iroquois,  Schoolcraft  —  Drake, 
i.  p.  221;  Upper  Californians  and  Innuit,  Kohler,  "Z.  f.  V.'R.,"  1897, 
p.  368).  Among  the  Yuroks  divorce  is  very  easily  accomplished  at  the 
•will  of  the  husband.     {Powers,  p.  56.)     In  this  last  case  the  husband 


Chap.  XII.]  WOMEN   IN    PRIMITIVE   SOCIETY  253 

with  one  or  two  exceptions,  the  inequality  has  been  pushed  still 
further,  as  we  shall  presently  see  in  detail.     In  the  West  the 

regains  the  bride  price.  It  is  free  to  both  parties  among  the  Eskimo  of 
Point  Barrow  and  of  Behring  Straits  and  Pawnees.  {Howard,  i.  pp.  227, 
228.)  Among  other  tribes  it  is  at  the  pleasure  of  the  husband  ;  [so  stated 
of  the  North  American  Indian  generally  {Schoolcraft,  i.  171) ;  of  the 
Oregons  {ib.,  v.  654) ;  of  the  Hupa  {Powers,  p.  85) ;  here  the  displeased 
husband  gets  back  the  bride  price ;  of  the  Dakota  {Howard,  i.  232)  ;  and 
the  Abipones  {ib.}.  In  the  last  case,  however,  it  may  lead  to  a  feud]. 
Among  other  peoples  the  man  must  lose  the  bride  price  if  he  divorces 
without  good  cause.  (Thlinkeets,  Kohler,  I.  c.)  In  some  the  wife  can 
leave  at  pleasure.  The  Navajo  women  are  said  by  Colonel  Eaton  {School- 
craft, iv.  217)  to  leave  their  husbands  on  the  slightest  pretext.  Among 
the  Digger  Indians  the  wife  leaves  the  husband  at  pleasure.  {Ib.,  223.) 
Among  the  Cegiha  the  wife's  relations  take  her  away  if  ill-treated  {How- 
ard, 228),  and  the  Sioux  and  Dakota  women  leave  their  husbands  for 
unfaithfulness  or  other  causes.  Among  the  Upper  Californians  the  de- 
serted husband  demands  the  return  of  the  bride  price.  In  the  later  form 
of  marriage  among  the  Creeks  the  bond  holds  for  a  year  only. 

Among  the  tribes  of  tropical  South  America  the  power  of  the  husband 
is  more  developed,  and  he  can  lend,  give,  prostitute,  sell,  or  exchange  his 
wife  at  pleasure.  {Schmidt,  I.  c,  1898,  p.  297.)  In  Brazil,  according  to 
Anchieta  (quoted  in  Howard,  p.  228),  the  wife  may  leave  at  pleasure.  So 
among  the  Moxos  {ib.,  239).  The  Bonak,  Guanan,  and  Guatamalan 
women  have  similar  freedom  (authorities  cited  by  Howard,  p.  239). 

In  Oceania  divorce  is  generally  easy,  though  there  are  one  or  two  cases 
in  which  it  appears  to  be  unknown.  In  Polynesia  divorce  by  mutual 
consent  is  la^vful.  {Howard,  p.  230.)  A  Tongan  husband  divorces  his 
wife  by  simply  telling  her  to  go.  {Ib.,  p.  231.)  In  Micronesia  divorce  is 
at  the  man's  pleasure,  and  the  same  is  true  of  the  Papuan  peoples,  among 
whom  the  woman,  if  she  fhes,  must  return  the  bride  price,  while  the  hus- 
band, if  in  earnest  about  it,  can  generally  reclaim  her  from  her  relatives 
by  the  terrors  of  witchcraft.  {Kohler,  "Z.  f.  V.  R.,"  1900,  p.  347.)  In 
the  Torres  Straits  divorce  appears  to  have  been  rare.  Infidelity  and 
sterility  were  the  chief  causes,  but  incompatibility  of  temper  appears  to 
have  been  recognized  as  sufficient.  ("Cambridge  Expedition,"  p.  246.) 
Among  the  Australians  the  husband  can  dismiss  his  wafe  at  pleasure. 
If  she  runs  away  she  belongs  to  any  one  who  may  re-capture  her.  {Lctonr- 
neau,  pp.  13  and  18.)  In  Western  Victoria  couples  may  separate  by 
mutual  consent,  but  the  husband  wishing  to  divorce  his  wfe  must  obtain 
the  consent  of  the  chief  men  of  his  own  and  his  wife's  tribe.  She  may 
also  complain  of  his  unfaithfulness  and  get  him  sent  away  for  two  or  three 
moons.  {Dawson,  "Australian  Aborigines,"  quoted  by  Howard,  pp.  229, 
230.) 

In  Africa  divorce  at  the  will  of  the  husband  is  general  {Post,  "A.  J.," 
i.  433).  The  corresponding  right  of  the  wife  is  rarer,  but  not  infrequent. 
Some  16  cases  are  enumerated  by  Post  ("  Afrik.  Jurisp.,"  p.  436),  but  some 
of  them  are  doubtful,  or  depend  on  special  conditions.  Among  the  Fantis, 
P^oulahs,  and  Kaffirs  {Post,  "A.  J.,"  p.  438),  and  in  Kordofan  and  Baka 
{Post,  "A.  J.,"  p.  439)  the  neglect  or  ill-treatment  of  the  wife  are  good 
grounds  of  divorce.  Among  the  Bogos  her  third  fUght  is  taken  as 
final.  {Post,  "A.  J.,"  p.  437.)  In  many  tribes  the  '^nfe  can  be  divorced 
for  sterility  {Post,  "A.  J.,"  p.  439)  and  among  the  Kimbundas  the  hus- 
band can  be  divorced  for  impotence.  {Post,  "A.  J.,"  p.  441.)  In  many 
cases  compensation  must  be  given  by  the  party  which  dissolves  the 
marriage,  e.g.  among  the  Foulahs  and  the  Kaffirs  for  groundless  re])udia- 
tion.  In  Bornu  the  wife  retains  her  dowTy.  {Post,  "A.  J.,"  pp.  442-3.) 
Am^ong  the  Banyars  she  receives  a  small  sum  and  retains  all  the  presents 
she  has  received.  {Post,  "A.  J.,"  p.  442.)  Among  the  Basutos,  unless 
guilty  of  an  offence,  she  is  entitled  to  support.  {Post,  "A.  J.,"  p.  442.) 
In  Egypt  she  can  also  claim  a  certain  provision,  and  in  Abyssinia  she  can 


254  PERSONS  [Part  II. 

changes  of  law  and  opinion  as  to  divorce  have  been  numerous  and 
sweeping,  as  will  appear  fully  when  we  deal  with  marriage  among 

claim  her  dowry  as  well.  {Post,  "A.  J.,"  p.  442.)  Among  the  Bogos  she 
takes  the  household  utensils  with  her,  among  the  Barea  and  Kunama  she 
has  half  the  joint  property,  and  in  Morocco  a  sum  awarded  hx  the  judge. 
{Post,  "A.  J.,"  pp.  442,  443.)  If  the  woman  leaves  the  man  her  family 
must  retm-n  the  bride  price,  and  perhaps  more.  But  the  question  of  com- 
pensation is  very  natm'ally  affected  by  the  circumstances  of  the  divorce. 
If  the  divorcing  party  has  good  grounds  he  or  she  pays  less,  or  perhaps 
pays  nothing.  Thus  among  the  Kaffirs,  Poulahs,  Fantis,  and  in  Kordofan 
the  ^vife  does  not  restore  the  bride  price  if  she  has  good  grounds  for  leav- 
ing her  husband.  {Post,  "A.  J.,"  p.  445.)  Among  the  Beni  Amer,  if 
it  is  the  man  who  divorces,  the  woman's  property  is  divided,  the  hus- 
band taking  his  weapons,  and  the  wife  the  house  and  contents.  If  the 
woman  divorces  the  man  for  ill-treatment  or  infidelity,  she  gets  only 
one-third  of  the  common  stock ;  if  impotence  is  the  cause  she  gets  half. 
{Post,  "A.  J.,"  p.  446.) 

Among  the  Yoruba  (where  father-right  holds)  the  husband  can  divorce 
the  wife  and  reclaim  the  bride  price  if  she  is  unfaithful ;  other-wise  he 
loses  the  price.  If  he  neglects  the  wife,  she  summons  a  palaver  of  her 
relatives,  and  if  he  persists,  she  may  leave  him.  If  he  is  of  inferior  rank 
he  is  liable  to  be  flogged  by  her  relations.  {Ellis,  "Yoruba  Peoples," 
p.  187.)  Under  mother-right,  where  the  woman  is  not  bought  out  of  her 
family,  the  children  often  follow  the  mother  in  case  of  divorce.  But  this 
is  not  always  the  case,  and  sometimes  the  circumstances  of  the  divorce 
determine  the  children's  future.      {Post,  "A.  J.,"  p.  447.) 

No  obstacle  is  offered  to  the  re-marriage  of  the  man,  but  under  mar- 
riage by  purchase  the  husband  generally  retains  some  control  over  the 
divorced  wife.  Among  the  Hottentots  and  Ashantis  she  cannot  re- 
marry ;  among  the  Banguns,  not  in  the  same  village ;  among  the  Kaffirs, 
only  if  she  had  good  grounds  for  lea\'ing  her  husband ;  among  the  Marea 
and  the  Habub,  not  till  her  husband  declares  her  free.  But  in  many 
cases  {Post,  "A.  J.,"  p.  450,  enumerates  8)  apparently  after  a  certain 
interval  she  is  free  to  re-marry. 

On  the  whole,  throughout  Africa,  marriage  by  purchase  prevails,  and 
the  position  of  the  wife  is  accordingly  less  favourable. 

Among  the  Indian  Hill  tribes  the  variations  are  great.  The  Nair  wife 
may  not  only  dismiss  any  of  her  twelve  husbands  at  pleasure,  but  may 
even  let  him  be  sold  into  slavery  for  debt.  {Rectus,  "Primitive  Folk," 
p.  158.)  Often  divorce  is  free  to  either  party.  Instances  are  the  Todas, 
Bodo  and  Dhimals  (but  here  an  adulteress  must  refund  the  bride  price), 
and  the  Karens.  Among  the  Badagas  the  wife  may  leave  if  she  pleases, 
but  the  husband  retains  the  children.  He  is  also  free  to  divorce  her. 
{Rectus,  op.  cit.,  p.  195.)  Among  the  Nagas  there  is  a  fine  according  to 
the  cause  of  the  divorce.  {Godden,  "J.  A.  I.,"  xxvi.  p.  177.)  Among  the 
Santals  divorce  is  rare,  but  is  permitted  to  either  party  on  obtaining  the 
consent  of  the  husband's  elan.  Among  the  Khonds  the  wife  may  leave  the 
husband  on  repaying  the  bi'ide  price.  (In  some  tribes  this  pri\'ilege  is 
restricted  to  the  childless.)  On  the  other  hand,  she  can  be  divorced  only 
for  adultery  or  prolonged  misconduct,  and  her  consent  is  required  if  the 
husband  wishes  to  take  a  concubine  {Rectus,  p.  280) ;  and,  a  rare  note  in 
the  savage  world,  infidelity  on  the  part  of  the  man  is  held  dishonourable. 

Among  the  peoples  of  Central  Asia  divorce  appears  to  be  open  to  the 
man  at  pleasm'e  and  to  the  woman  for  persistent  ill-treatment.  {Ralzel, 
vol.  iii.  p.  342;    Letourneau,  "La  Femme,"  p.  210.) 

Among  the  Malays,  divorce  is  greatly  influenced  by  the  form  of  mar- 
riage. In  the  Ambil  Anak  marriage  the  wife  may  divorce  the  husband. 
In  the  Djudjur  marriage  all  the  advantage  is  on  his  side,  but  she  can 
generally  escape  from  him  if  ill-treated.  In  the  Semando  form  of  rnar- 
riage  (see  Waitz,  v.  p.  145)  the  taking  of  a  second  wife  or  concubine  is  a 
ground  of  divorce,  and  in  one  place  (Mokomoko)  this  is  the  only  form 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  255 

civilized  peoples.  For  the  present,  we  content  ourselves  with 
noting  the  prevalence  of  a  loose  and  easily  dissolved  marriage  tie 
in  the  lower  stages  of  culture,  which  gives  way  to  a  binding  form 
of  marriage  with  decided  privileges  for  the  husband  at  the  next 
grade.  We  shall  find  this  to  be  in  line  with  a  more  general 
movement. 

8.  IV,  To  understand  this  movement,  we  deal  first  with  ^Methods 
of  INIarriage.  The  principal  methods  by  which  a  wife  is  obtained 
in  the  uncivilized  world  come  under  four  heads :  — 

a.  Capture. 

b.  Purchase. 

c.  Service. 

d.  Consent. 

A  few  words  may  be  said  here  of  the  general  character  of  these 
four  methods,  while  their  bearing  upon  the  marriage  relation  will 
be  further  discussed  in  the  following  Section. 

a.  Marriage  by  capture  is  a  somewhat  ambiguous  term.  The 
practice  of  taking  women  captives  in  war  or  in  petty  raids  is 
widely  diffused  over  the  savage  world.  In  the  genuine  and  un- 
adulterated form  of  carrying  off  a  bride  from  a  strange  tribe 
against  her  will  and  that  of  her  relations,  it  occurs,  according  to 
Professor  Tylor,  in  some  forty  cases.  ^  From  this  genuine  capture 
Professor  Tylor  distinguishes  connubial  and  formal  capture. 
Connubial  capture  is  not  a  mere  form,  but  is  a  recognized  method 
of  obtaining  a  bridge  between  families  living  at  peace  with  one 
another,  and  is  not  regarded  as  a  sufficient  ground  of  quarrel. 
Of  this  Professor  Tylor  finds  forty-six  cases.  Finally,  he  enu- 
merates forty-four  cases  in  which  the  form  of  capture  is  retained 
without  the  reality  as  part  of  the  wedding  ceremony.  One  illus- 
tration will  suffice:  —  "Among  the  Bedouins  of  Sinai  the  bride- 
groom seizes  the  woman  whom  he  has  legally  purchased,  drags 
her  into  his  father's  tent,  lifts  her,  violently  struggling,  upon  his 
camel,  holds  her  fast  while  he  bears  her  away,  and  finally  pulls  her 

recognized.  {Waitz,  v.  145,  etc.)  Among  the  Battaks  of  East  Sumatra 
there  is  no  one-sided  divorce,  except  for  attempt  to  murder,  and  mutual 
agreement  is  required.      (Howard,  p.  229.) 

'  As  an  incident  of  savage  warfare  it  is  probably  more  frequent.  A  long 
list  of  instances  of  the  practice  is  given  in  Howard,  vol.  i.  p.  158.  From 
Cape  Horn  to  Hudson's  Baj^  women  are  regarded  as  legitimate  boot}\ 
The  practice  of  capture  prevails  throughout  Melanesia,  has  existed 
throughout  Tasmania,  New  Zealand,  Samoa,  New  Guinea,  among  the 
Fiji  Islanders,  the  Indian  Archipelago,  and  to  a  limited  extent  in  Australia  ■• 
it  is  found  occasionally  in  Africa,  and  in  various  ancient  nations. 


256  PERSONS  [Part  II. 

forcibly  into  his  house,  though  her  powerful  resistance  may  be  the 
occasion  of  serious  wounds."  ^  In  other  cases  the  resistance  is 
less  determined,  and  the  form  of  capture  is  reduced  to  a  mere  sym- 
bolical act.  The  wide  prevalence  of  these  forms  led  IMcLennan 
and  others  to  the  belief  that  capture  was  originally  universal ; 
but  this  opinion  is  now  abandoned.  Capture,  as  we  shall  see 
further,  is  incompatible  in  principle  with  the  wddely-diifused 
primitive  system  of  mother-right,  and  its  existence  as  a  form  may 
be  explained  in  many  instances  by  the  necessity  of  a  symbolic  act 
to  express  approi)riation.  The  symbol,  in  fact,  is  not  necessarily 
a  survival  of  something  more  real,  but  may  be  rather  a  legal 
expression  of  the  character  of  the  act  performed. 

b.  Purchase.  A  far  commoner  method  of  obtaining  a  wife  is 
that  of  purchase.  Where  this  method  is  fully  developed  the  un- 
married girl  is  not  her  own  mistress.  She  is  one  of  the  family; 
more,  she  is  the  property  of  the  family  or  of  tlje  family's  repre- 
sentative —  the  governing  male,  her  father,  brother,  guardian, 
whoever  he  may  be.  She  is  an  asset  of  a  certain  value  to  the 
family,  the  amount  depending  partly  on  her  attractiveness,  partly 
on  her  labour,  partly  on  the  scarcity  of  the  article.  This  article 
can  be  sold  for  so  much,  and  the  purchaser  naturally  becomes 
wholly  possessed  of  what  he  buys. 

We  shall  see,  accordingly,  that  this  form  of  marriage  is  inti- 
mately associated  with  the  extension  of  marital  power,  but  the 
extent  of  this  power  and  the  subjection  alike  of  the  unmarried 
woman  and  the  wife  vary  very  greatly  in  different  cases.  The 
nature  of  the  purchase  also  varies.  Very  frequently  there  is  a 
return  gift  from  the  bride's  parents,  and  in  some  cases  the  return 
gifts  equal,  or  even  surpass,  the  price  originally  paid.^  It  is 
generally  assumed  that  this  exchange  is  a  modification  of  purchase, 
and  that  it  is  through  the  increase  of  the  return  gift  that  the  oppo- 
site practice  of  the  dowry  arises.  It  is  also  possible  that  the 
exchange  of  presents  arises  independently  in  connection  w4th 
marriage  by  free  consent  of  the  parties  as  a  method  of  cementing 
the  union  of  the  two  families.     However,  w^hen  gifts  of  serious 

1  Howard,  i.  165,  166. 

2  E.g.  in  Columbia  {Howard,  vol.  i.  192).  In  the  Torres  Straits,  appar- 
ently the  gifts  are  ultimately  balanced  by  return  presents,  yet  the  trans- 
action seems  to  retain  a  commercial  character.  The  chief  Maino  told 
Dr.  Haddon  that  he  paid  for  his  mfe  a  camphor-wood  chest  with  7  bolts 
of  calico,  one  dozen  shirts,  one  dozen  singlets,  one  dozen  trousers,  one 
dozen  handkerchiefs,  two  dozen  tomahawks,  one  dozen  hooks,  two  fish- 
lines,  one  long  fish  spear,  one  pound  of  tobacco,  two  pearl  shells,  and 
"by  golly,  he  too  dear!"      ("Cambridge  Expedition,"  p.  231.) 


Chap.  XII.]  WOMEN   IX    PRIMITIVE    SOCIETY  257 

value  are  exchanged,  we  must  admit  that  the  whole  proceeding 
bears  the  character  of  a  commercial  transaction  in  which  the  girl, 
so  to  say,  is  an  item  on  one  side  of  the  account.^ 

c.  Service.  Where  the  husband  is  not  able  to  pay  for  the  wife 
he  sometimes  receives  her  on  credit,  and  in  default  of  the  possi- 
bility of  payment  may  work  out  his  debt  in  the  form  of  service. 
This  practice  is  familiar  to  us  from  the  case  of  Jacob,  and  is  found 
to  this  day  in  many  parts  of  the  world. ^  In  this  case  the  husband 
enters  the  wife's  family  for  the  period  of  his  service,  which  being 
concluded  he  returns  to  his  own  people  and  sets  up  a  house  on  his 
own  account.  But  while  residing  with  his  wife's  relations  the 
husband  is  rather  a  tolerated  visitor  than  the  lord  and  master 
of  his  own  family.  Indeed,  he  is  but  partially  tolerated,  for  this 
residence  in  the  wife's  home  is  frequently  associated  with  the 
taboo  separating  the  husband  from  the  wife's  relations.  They  are 
bound  to  mutual  avoidance  because,  as  being  generally  members 
of  separate  totems  or  clans,  they  are  in  theory  enemies.  On  the 
other  hand,  when  the  service  is  completed  and  Jacob  has  led  Leah 
and  Rachel  to  his  own  home,  his  authority  is  vindicated  and  he  has 
whatever  rights  the  custom  of  the  tribe  allows.  The  sustaining 
cause  of  this  form  of  marriage  appears  to  be  principally  economic. 
The  man  serves  because  he  has  not  the  property  to  buy  a  wife, 
and  so  we  find  marriage  by  service  existing  side  by  side  with  mar- 
riage by  purchase. 

d.  Consent.  In  all  grades  of  culture  the  human  factor  has  its 
say  in  the  arrangement  of  marriage,  and  probably  in  the  lowest 
grades  of  all  the  agreement  of  the  parties  is  often  sufficient  to 
determine  a  union.  Even  where  capture  or  purchase  is  de- 
veloped, this  factor  cannot  be  wholly  eliminated.  A  pair  who  are 
determined  on  having  each  other  will  settle  all  questions  of  right, 
in  the  savage  as  in  the  civilized  world,  by  elopement.  The  actual 
influence  of  the  woman's  wishes  is,  of  course,  often  a  question  of 
fact  rather  than  of  right.     If,  confining  ourselves  to  the  latter 

'  Very  often  the  girl  purchased  is  balanced  by  another  girl  upon  the 
other  side  of  the  account ;  in  other  words,  A,  wishing  to  marry  B's  daugh- 
ter, gives  B's  son  his  own  sister  in  e.xchange.  (For  instances,  see  Howard, 
i.  18.5;  Wcstermarck,  390.)  We  might,  indeed,  make  a  separate  type 
of  this  practice  and  call  it  marriage  by  exchange. 

2  In  Africa,  among  the  Quoja,  Fantis,  Banyai,  Edeyahs,  and  in  Futa^ 
toro,  also  among  the  Zulus  and  Basuto.  It  is  found  in  N.  America  among 
the  Aleuts  and  other  Indian  tribes ;  in  S.  America  among  the  Brazilians ; 
and  in  the  backward  tribes  of  Asia  among  the  Nagas  of  Assam,  the  Kookis, 
and  among  other  hill  tribes,  also  among  the  Tunguses,  the  Ainu,  the 
Kamchadeles,  and  the  alwrigines  of  China ;  among  the  Dyaks  and  some  of 
the  Philippinos,  and  here  and  there  in  Oceania.  {Wcstermarck,  "Human 
Marriage,"  390;   and  Post,  "A.  J.,"  i.  378.) 


258  PERSONS  [Part  II. 

point,  we  put  together  the  numerous  cases  of  child  betrothal, 
the  instances  in  which  women  are  acquired  by  purchase  or  ex- 
change, or  by  hostile  capture,  and  finally,  cases  in  which,  though 
the  consent  of  the  woman  is  asked,  that  of  her  guardian  is  also 
necessar}',  we  shall  arrive  at  the  conclusion  that  the  explicit 
recognition  of  a  woman's  free  power  to  dispose  of  herself  is  upon 
the  whole  the  exception  in  the  uncivilized  world. ^  In  practice 
her  liberty  is  greatest  where  the  family  organization  is  lowest,  and 
the  authority  of  the  father  least  developed. 

1  Westermarck  (p.  215)  makes  a  fairly  long  list  of  eases  in  which  the 
bride's  consent  is  of  greater  or  less  importance.  But  from  the  nature  of 
the  case  it  is  difficult  to  classify  the  customs  of  different  peoples  on  this 
head.  It  does  not  need  arguing  that  a  woman  may  find  means  of  mak- 
ing her  own  views  felt  whatever  the  customs  of  the  tribe.  Of  the  J"'ue- 
gians,  who  are  referred  to  by  Dr.  Westermarck,  Messrs.  Hyades  and 
Deniker  say  distinctly  that  the  parents  give  the  girl  in  marriage  -ndthout 
asking  her  consent.  We  can  accept  this  statement  and  still  believe  that  if 
she  is  resolute  enough  to  leave  her  husband  and  persist  in  her  aversion  she 
will  get  her  parents  to  give  her  to  some  one  whom  she  likes.  {Wester- 
marck, I.  c.)  Among  the  Hottentots  and  Kaffirs  distinct  compulsion  is 
exercised  according  to  Post,  "Afrik.  Jurisp.,"  i.  p.  363.  But,  no  doubt, 
the  woman's  choice  also  has  influence  among  these  peoples.  Often  the 
most  opposite  customs  occur  in  the  same  tribe,  e.g.  capture,  purchase 
and  choice  by  the  woman  among  the  Digger  Indians  {Schoolcraft,  iv.  p.  223), 
and  this  is  merely  what  the  facts  of  human  nature  would  lead  us  to  antici- 
pate. Elopement  and  a  peculiar  form  of  child  betrothal  co-exist  among 
the  Central  Australians,  and  by  way  of  exception  they  also  have  mar- 
riage by  capture.  {Spencer  and  Gillen,  p.  104.)  In  the  Marquesas 
Islands  Letourneau  remarks  that  the  parents'  objections  are  often  over- 
come by  the  pair  decamping  together.  ("La  Femme,"  p.  106.)  This  is 
a  remedy  known  to  the  ci\'ilized  world  as  well,  but  it  proves  nothing  as 
to  law  or  custom.  Matters  are  more  strictly  defined  among  the  Oregon 
Indians,  where  marriage  is  by  purchase,  or  If,  as  will  happen,  a  runaway 
match  occurs,  the  woman  is  looked  down  on  as  a  prostitute.  {Schoolcraft, 
V.  p.  655.) 

In  many  cases  child  betrothal  co-exists  with  the  right  of  choice  by  the 
grown  up  woman.  Thus,  among  the  Yoruba,  according  to  Captain 
A.  B.  Ellis  ("The  Yoruba-speaking  Peoples,"  pp.  183-185),  there  is  child 
betrothal,  but  a  woman  cannot  be  forced  into  marriage  though  she  may 
be  prevented  from  it.  Among  the  Ainu,  Batchelor  (p.  141)  notes  child 
betrothal  as  an  occasional  practice  now  extinct,  marriage  going  now  in 
the  main  by  the  consent  of  the  parties. 

Post  ("Afrik.  Jm-isp.,"  i.  pp.  364  and  371),  who  notes  eight  cases  in 
Africa  where  the  bride's  consent  is  required,  remarks  that  practically  the 
consent  of  the  guardians  is  also  necessary,  but  information  is  scanty. 
The  Yoruba,  quoted  above,  Avould  be  a  case  in  point. 

The  means  of  securing  consent  are  often  sufficiently  savage.  E.g. 
according  to  Post  {I.  c,  p.  363)  the  reluctant  Hottentot  maiden  must  pass 
a  night  with  the  lover  and  become  Ms  wife  if  he  succeeds  in  ravishing 
her.  Among  the  Mandingos  the  girl  has  the  option  of  remaining  un- 
married, and  if  ever  given  to  another,  her  first  lover  may  make  her  his 
slave. 

A  variant  to  the  ordinary  case  of  the  disposal  of  a  girl  by  her  parents 
occurs  when  a  man  acquires  a  right  to  a  woman  by  his  position.  This 
appears  under  the  Le-vdrate  and  also  in  cases  like  that  of  the  Oregon 
Indians,  where  marrying  an  eldest  daughter  entitles  a  man  to  all  her  sisters, 
even  if  one  of  them  be  already  the  wife  of  another.     {Schoolcraft,  v.  p.  654.) 


Chap.  XII.]  WOMEN   IN    PRIMITIVE   SOCIETY  259 

9.  V.  The  Relation  of  Husband  and  Wife. 
To  understand  the  ethical  import  of  this  bewildering  variety 
of  customs  we  must  look  to  the  conception  of  the  family  and  of 
the  relations  of  its  members  to  one  another.  The  specific  ex- 
planation of  the  rise  of  particular  forms  at  particular  times  and 
places  may  be  unattainable,  but  by  taking  the  conception  of  the 
family  as  our  starting  point  we  shall,  I  think,  be  able  to  understand 
how  it  is  that  abnormal  forms  like  polyandry  and  partial  promis- 
cuity are  possible  in  primitive  society,  why  they  disappear  at  a 
later  stage,  why  polygamy  existing  in  the  lowest  culture  is  extended 
and  reaches  an  abnormal  development  in  the  middle  civilization, 
and  why  in  the  West  it  has  given  place  to  monogamy.  Here,  if 
anywhere,  again  we  may  hope  to  gain  some  insight  into  the  causes 
affecting  the  permanence  of  marriage,  and  to  trace  out  the  devious 
and  tangled  laws  by  which  this  varies  in  different  stages  of  culture, 
to  understand  finally  the  conditions  under  which  the  methods  of 
marriage  just  enumerated  arise  in  early  society,  and  how  the  first 
three  forms  gradually  yield  to  marriage  by  consent.  In  tracing 
this  evolution  we  have  to  deal  not  with  any  single  cause  or  with 
any  single  and  continuous  development,  but  with  a  blending  of 
ethical  conceptions,  themselves  various,  confused  and  even 
conflicting,  with  religious  principles,  and  economic  and  social 
forces. 

The  result  which  emerges  from  all  this  confusion  may,  how- 
ever, as  I  think,  be  briefly  stated,  and  it  will  conduce  to  clearness  if 
it  is  set  out  beforehand.  Broadly,  the  family  may  be  said  to  have 
gone  through  three  stages  of  development.  In  its  first  form  the 
natural  family,  by  which  I  mean  husband,  wife  and  children,  is  not 
yet  complete ;  husband  and  wife  are  not  as  yet  united  in  the  sense 
in  which  they  become  legally  and  morally  one  flesh  in  the  higher 
forms  of  marriage.  This  form  of  marriage,  of  course,  corresponds 
to  the  maternal  clan  system.  In  the  second  form  of  marriage 
the  natural  family  is  complete,  and  the  husband  is  the  head  ;  but  it 
is  completed  at  the  cost  of  the  greater  subjection  of  the  wife,  who, 
in  passing  into  the  husband's  family,  merges  her  personality  in 
his,  often  almost  like  a  slave.  In  the  third  form  of  marriage  the 
union  of  the  family  is  maintained  by  the  closest  moral  bond,  but 
the  full  legal  and  moral  personality  of  the  wife,  as  well  as  of  the 
husband,  is  preserved.  This  third  form  of  marriage  must  be  re- 
garded as  a  type  or  as  an  ideal  rather  than  as  an  actuality.^     To 

1  I  do  not  add  the  religious  conception  of  marriage  (as  a  sacrament)  as 
a  fourth  type,  because  the  religious  (or  magical)  conception  is  present  at 


260  PEKSONS  [Part  II. 

achieve  it  is  a  problem  which  civiHzation  has  yet  to  solve,  since 
the  solution  involves  a  certain  reconciliation  of  contradictories ; 
and  if  we  wish  to  recognize  any  types  of  marriage  as  belonging  to 
this  class  we  must  exercise  a  little  liberality  and  admit  all  such  as 
make  a  bona  fide  effort  towards  the  solution.  These  efforts  belong, 
in  the  main,  to  the  story  of  civilized  marriage.  We  have  first 
to  consider  the  two  lower  forms,  which  together  dominate  the 
uncivilized  world.  In  the  early  stages  of  historical  investigation 
into  the  beginnings  of  civilization  it  was  thought  that  society 
arose  out  of  the  patriarchal  family,  and  that  in  Abraham,  Isaac 
and  Jacob,  or  again  in  the  Roman  paterfamilias,  as  we  reconstruct 
him  from  the  laws  of  the  Twelve  Tables  and  what  we  know  of 
earlier  Roman  law,  we  have  a  type  of  primitive  human  govern- 
ment. The  researches  of  Bachofen,  McLennan,  Morgan,  and 
others  opened  up  an  entirely  new  field  of  speculation.  It  was 
shown  that  the  lower  we  go  in  the  scale  of  civilization  the  more 
prevalent  we  find  a  type  of  organization  which  is  in  many  ways 
the  opposite  of  patriarchal,  putting  the  mother  for  many  purposes 
into  the  father's  position.  Amongst  civilized  nations  which  have 
passed  out  of  this  stage  we  find  indubitable  traces  of  their  having 
gone  through  it  at  an  earlier  period.  These  observations  led  to 
the  setting  up  a  matriarchal,  as  opposed  to  the  patriarchal,  theory, 
and  to  the  belief  that  in  the  dim  red  dawn  of  man  there  was  a  golden 
age  of  woman,  which  later  on  passed  into  the  iron  age  of  male  des- 
potism. The  facts  were  sound,  but  the  inference  drawn  from  them 
was  precarious,  for  it  was  not  sufficiently  recognized  that  there  was 
a  distinction  between  matriarchy,  the  rule  of  the  mother,  and  what 
I  have  spoken  of  already  as  mother-right,  rule  going  through  the 
mother  and  dependent  on  the  mother.  What  is  really  common 
among  the  lower  savages,  and  may  even  have  been  universal  at  a 
certain  stage,  is  not  matriarchy,  but  mother-right,  and  along  with 
mother-right,  and  where  it  most  flourishes,  it  is  perfecth^  possible 
for  the  position  of  women  to  be  as  low  as  the  greatest  misogynist 
could  desire.  The  actual  number  of  cases  in  which  the  woman  has 
a  controlling  or  even  an  equal  position  are  very  few.  I  will 
mention  one  or  two  of  them  later  on.  As  a  general  rule,  where  the 
father  is  not  head  of  the  household  that  place  is  taken  by  the  wife's 
brother,  and  the  maternally  organized  clan  consists  of  units  corn- 
each  stage  as  a  basis  or  framework  for  law  or  custom  rather  than  as  an 
independent  form  of  the  marriage  relation.  At  the  same  time  these 
religious  conceptions,  particularly  under  Christianity,  have  deeply  affected 
the  actual  contents  of  the  law,  and  in  relation  to  the  permanence  of  the 
union  may  be  said  to  have  constituted  a  special  type. 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  261 

posed  each  of  a  woman,  her  brothers,  and  her  children.  The 
woman  is  not  necessarily  any  better  off  because  she  is  ruled  by  a 
brother  in  place  of  a  husband. 

Let  us  set  the  two  types  of  family  in  contrast.  Under  mother- 
right  the  wife,  under  father-right  the  husband,  is  the  pivot  on  which 
the  family  relationships  turn.  Under  mother-right  the  wife 
remains  a  member  of  her  own  family.  Under  father-right  she 
passes  out  of  her  family  altogether,  she  is  even  separated  from  the 
family  cult  and  family  gods,  her  husband's  people  are  her  people 
and  his  gods  her  gods.  Under  mother-right  the  children  take  the 
mother's  name  and  belong  to  her  kindred.  In  cases  of  divorce 
they  follow  the  mother.  It  is  the  mother's  family  who  protects 
them.  Her  brother  is  their  natural  guardian,  and  exercises  all 
the  rights  and  duties  which  may  belong  to  that  position.  The 
maternal  kinsfolk  stand  together  in  the  blood  feud,  they  and  not 
the  husband  protect  or  avenge  the  wife  and  her  children.  They 
may  even  protect  her  and  them  from  the  husband  himself.  In 
extreme  cases  the  children  are  not  held  to  be  related  to  their  father 
or  to  their  father's  family  at  all,  whence  in  some  peoples,  half- 
brother  and  half-sister  may  intermarry  as  in  the  well-known  case 
of  Abraham  and  Sarah.^  Under  father-right,  on  the  contrary,  it 
is  relationship  through  the  male  which  counts.  The  father  is 
the  natural  guardian  and  protector  of  the  children  and  in  case  of 
divorce  retains  them.  It  is  to  him  and  his  kin  that  wife  and 
children  look  for  protection.  In  extreme  cases  it  is  only  such 
relationship  that  is  regarded.  The  wife  and  her  children  cease 
to  have  claims  on  her  family,  while  relationship  to  the  male 
ancestors  and  descendants  is  traced  to  the  remotest  degrees. 
These  consequences  of  the  strict  principle  of  father-right,  however, 
are  seldom  pushed  to  the  full  length.  Relationship  through  the 
mother  is  generally  a  bar  to  marriage,  though  the  degrees  are  not 
carried  so  far  as  upon  the  masculine  side ;  ^  nor  is  the  wife  often  so 

1  Similarly  among  the  Spartans  children  of  the  same  mother  might 
marry,  but  not  those  of  the  same  father.  The  Samoyedes  had  a  similar 
rule.  {Post,  ii.  p.  60.)  But  these  logical  consequences  are  by  no  means 
always  pressed.  The  actual  facts  of  kinship  have  their  weight.  Thus, 
to  take  a  single  instance,  in  New  Britain  a  man  may  legally  marry  his 
brother's  daughter,  but  in  practice  is  restrained  by  the  general  feeling  of 
repugnance  to  such  unions.      {Danks,  "J.  A.  I.,"  xviii.  p.  2S3.) 

-  Thus  a  Hindu  must  not  marry  within  the  seventh  degree  on  the 
father's  or  the  fifth  on  the  mother's  side.  {Mayne,  "Hindu  Law,"  p.  87, 
4th  ed.)  Manu  makes  a  deeper  distinction:  "a  damsel  who  is  neither 
Sapinda  on  the  mother's  side  nor  belongs  to  the  same  family  on  the  father's 
side  is  recommended  to  twice-born  men."  {Manu,  iii.  5.)  Sapindas  are 
relations  whose  common  ancestor,  if  a  male  is  not  more  than  six,  if  a 
female  not  more  than  four  degrees,  removed  from  either  of  them.     Manu 


262  PEKSONS  [Part  II. 

cut  off  from  her  relations  as  the  strict  consequences  of  the  paternal 
theory  might  lead  us  to  expect.  Her  family  as  a  rule  retains  a 
right  of  protecting  her  if  she  is  ill-treated ;  she  will  fly  to  them  for 
succour,  and  their  right  to  guard  her  is  recognized.^  Lastly, 
under  mother-right  the  property  passes  through  the  woman,  if 
not  to  the  woman.     Under  father-right  it  goes  from  father  to  son. 

10.  How  father-right  arose  in  history  we  do  not  know,  we 
cannot  even  say  with  certainty  that  the  alternative  form  of  mother- 
right  in  all  cases  preceded  it.  We  do  know,  however,  that  mother- 
right  extends  over  a  great  part  of  the  savage  world  of  to-day,  in 
some  cases  in  a  pure  and  typical  form,  in  other  cases  blended  with 
foreign  institutions  belonging  in  logic  to  the  opposite  principle. 
Pure  or  mixed,  it  prevails  over  a  great  part  of  the  Indian  popula- 
tion of  North  and  South  America,  among  the  Oceanic  peoples, 
and  among  many  Negro  peoples.  It  is  so  common  as  almost  to 
deserve  the  name  of  the  dominant  form  of  family  life  among  many 
of  the  lowest  races  of  the  world.  This  is  not  all.  Among  almost 
all  races  are  to  be  found  traces  of  the  same  institution,  so  that,  if  not 
certain,  it  is  still  probable,  that  mother-right  was  once  universal, 
and  represents  the  primitive  form  of  the  family.  On  the  other 
hand,  father-right  is  the  prevailing  system  in  all  Indo-Germanic 
peoples,  among  the  Semites  and  Mongolians.  It  appears  in  some 
cases  among  the  Red  Indians,  and  more  often  among  the  South 
American  tribes.  In  Oceania  it  is  rare  ;  throughout  Africa  it  is  in- 
termingled with  the  opposite  system. 

If  we  do  not  know  how  or  when  it  arose,  we  can  with  some 
certainty  specify  certain  conditions  under  which  it  arises.  The 
first  of  these  is  the  recognition  of  paternity,  the  second  is  the  rise 
of  certain  forms  of  marriage  involving  the  appropriation  of  a 
woman  by  her  husband.^  As  to  the  first  point,  paradoxical  and 
almost  incredible  as  it  may  appear  to  us,  there  are  cases  in  which 
primitive  men  find  a  difficulty  in  understanding  that  a  man  is 

thus  insists  on  complete  exogamy  to  the  male  line,  while  forbidding  the 
female  kin  only  to  certain  degrees. 

In  Roman  law  the  praetors  early  began  to  recognize  the  full  right  of 
blood  (cognatio)  as  against  the  strict  agnatio  of  the  patriarchate. 
(Maine,  "Ancient  Law,"  p.  151.) 

1  Cf.  Vinogradoff,  "Growth  of  the  Manor,"  pp.  11,  12  (the  Celts) ;  136 
(the  Germans). 

"  Both  of  these  I  take  to  be  essential  to  the  full  development  of  the 
paternal  system,  but  either  by  itself  may  engender  some  of  the  conse- 
quences of  father-right.  E.g.  in  some  Central  Australian  tribes  the  son 
follows  the  father's  totem,  though  paternity  is  not  understood.  It  suffices 
that  the  husband  is  master  of  the  mother.  {Spencer  and  Gillen,  ii.  145, 
175.) 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  263 

responsible  for  the  birth  of  a  child,  and  attribute  it  to  the  action 
of  a  spirit  or  an  inanimate  object.^  It  is  clear  that  the  recognition 
or  non-recognition  of  fatherhood  must  make  all  the  difference 
to  the  position  of  the  husband  in  the  family,  and  in  fact  we  find 
the  transition  to  father-right  frequently  associated  with  the 
curious  custom  of  the  couvade,  which,  however  it  is  to  be  under- 
stood, is  clearly  a  recognition  of  the  relation  of  the  father  to  the 
new-born  son.  The  essence  of  the  couvade  is  that  the  father  has  to 
take  certain  precautions  at  the  time  of  birth,  ^^^lateve^  the  pre- 
cise meaning  of  these  precautions  —  whether  they  are  to  protect 
the  father,  a  portion  of  whose  soul  is  passing  into  the  child,  or  the 
child  in  whom  the  soul  is  finding  a  new  lodgment  —  they  represent 
a  recognition  of  paternity,  and  apparently  recognition  in  a  crude 
and  early  form  in  which  it  is  conceived  as  a  passage  of  the  father's 
soul  into  the  child's  body.  Hence  it  is  very  natural  that  the  custom 
should  flourish  at  the  stage  at  which  father-right  begins  to  assert 
itself,  and  this  is  what  we  find.  Among  the  Melanesians,  for 
example,  there  are  islands  where  mother-right  prevails,  but  the 
husband  has  begun  to  assert  himself,  taking  the  wife  to  his  father's 
house  or  to  his  own,  if  he  has  one  ready,  where  he  remains  un- 
doubted master.  Here  there  is  a  mild  couvade,  the  father  re- 
fraining from  exertion,  and  from  certain  foods.  But  in  the  South- 
Eastern  Solomon  group,  where  father-right  is  more  developed, 
the  couvade  is  also  more  conspicuous.^  So  again  in  quite  another 
part  of  the  world,  among  the  South  Americans,  we  find  it  just  at 
the  turning  point  where  mother-right  passes  into  father-right. 
AMiere  the  position  of  the  father  has  long  been  recognized  and  is 
thoroughly  established,  the  custom  disappears.  Its  flourishing 
time  is  at  the  period  when  the  one  system  is  beginning  to  give  way 
to  the  other .^ 

If  the  first  condition  of  the  paternal  system  is  the  recognition 
of  the  man's  relation  to  his  children,  the  second  condition  is 
that  he  should  appropriate  the  wife  as  his  own.  This  he  clearly 
does  not  do  as  long  as  she  remains  in  her  own  family,  retaining 
her  property  as  a  member  of  that  family  and  having  her  children 

'  This  is  the  theory  of  the  Central  Australians.  {Spencer  and  Gillen, 
i.  265  and  ii.  330.)  Some  Melanesians  hold  that  paternity  is  due  to  a 
cocoa-nut,  bread-fruit,  or  something  similar.  (Codringlon,  "J.  A.  I.," 
xviii.  310.) 

^Codrington,  ".J.  A.  I.,"  xviii.  309-11.  Cf.  Kohler,  "Z.  f.  V.  R.," 
1900,  p.  3.5.5,  on  the  couvade  in  Papuan  custom. 

^Schmidt,  "Z.  f.  V.  R.,"  1898,  297.  "Sie  {i.e.  the  customs  connected 
with  the  couvade)  werden  sich  also  am  ausgepragtesten  g-erade  wahrend 
jene  Uebergangszeit  zeigen  wo  das  eine  Prineip  (i.e.  Vater-recht)  das 
Andere  abzulosen  beginnt." 


264  PERSONS  [Part  II. 

in  turn  reckoned  as  members  of  it.  But  there  are  two  processes 
known  to  primitive  man  by  which  a  man  can  make  a  woman  his 
own  property  and  transfer  her  to  his  own  family,  viz.  the  methods 
of  marriage  described  as  capture  or  purchase.  Professor  Tylor 
justly  points  out  that  the  practice  of  capture  must  tend  to  break  up 
the  whole  system  of  mother-right.  \Mien  the  woman  is  carried 
off  from  her  own  clan  to  her  husband's  house  the  physical  facts 
conflict  with  any  custom  or  law  regarding  her  and  her  children 
as  still  belonging  to  her  family  rather  than  to  his.  Hence  out  of 
forty  cases  of  genuine  or  "hostile"  capture  Prof.  Tylor  finds  that 
six  only  occur  in  the  maternal  stage.  Of  "connubial"  capture  he 
places  twenty-one  instances  in  the  stage  of  transition  from  the 
maternal  to  the  paternal  system,  and  twenty-five  in  the  paternal 
system  proper.  There  are  no  instances  under  pure  mother-right. 
Finally  he  enumerates  forty-four  cases  in  which  the  form  of  capture 
is  retained  without  the  reality  as  part  of  the  wedding  ceremony. 
Of  these  he  finds  no  instances  under  mother-right,  but  twenty-one 
in  the  transitional  stage  and  twenty-three  under  the  paternal 
system.^ 

Now  though,  as  we  have  seen,  there  is  no  reason  to  think  that 
capture  was  ever  universal  or  that  it  was  the  original  form  of 
marriage,  it  is  beyond  doubt  one  very  primitive  way  of  compassing 
that  type  of  marriage  which  involves  ownership  of  the  woman, 
and  it  is  quite  intelligible  that  in  a  tribe  where  mother-right  pre- 
vailed those  men  who  by  their  own  bow  and  spear  could  obtain 
w^omen  from  a  neighbouring  clan  should  treat  those  women  as  their 
own  property,  and  so  establish  a  workingmodel  of  the  patriarchate. 
It  is  also  readily  credible  that  the  new  type  should  be  more  popular 
than  the  old  —  at  any  rate  among  the  men  —  and  that  they  should 
seek  to  extend  it  to  cases  in  which  the  wife  belonged  to  their  own 
clan,  and  so  establish  universal  father-right.  But  to  lay  down 
that  this  was  the  actual  process  by  which  father-right  came  to 
prevail  would  be  to  go  far  beyond  our  evidence.  There  is  no  proof 
that  all  patriarchal  societies  have  gone  through  the  stage  of  mar- 
riage by  capture,  and  its  frequent  appearance  as  a  form  is  not 
conclusive.  The  explanation  may  be  that  some  form  was  necessary 
to  assert  definite  ownership,  and  that  the  natural  form  of  asserting 
definite  ownership  was  the  form  of  capture. 

The  alternative  and  in  reality  commoner  method  of  appropriat- 
ing a  wife  is  that  of  purchase,  and  the  fact  of  purchase  is  closely 
associated  with  the  whole  position  of  women  in  cases  where  the 
1  Tylor,  "J.  A.  I.,"  xviii.  259. 


Chap.  XII.]  WOMEN    IN    PRIMITIVE    SOCIETY  265 

patriarchate  is  strongly  developed.  ^Ye  are  moving  here  in  a 
region  permeated  with  ideas  of  slavery,  the  ownership  of  one 
human  being  by  another,  permeated  also  by  the  idea  of  a  family 
as  a  unit  to  which  each  member  belongs  as  a  limb.  The  bride 
purchased  from  her  own  family  passes  out  of  it  and  into  that  of  her 
husband.^  ^Miere  the  consequences  are  pressed  to  their  furthest 
extent  her  family  lose  the  power  of  protecting  her,  and,  since  in 
barbaric  society  there  is  no  law  except  the  protection  of  one's 
family,  the  wife  is  at  the  mercy  of  her  husband  as  to  life  and  limb. 
He  may  dispose  of  her  at  pleasure,  he  may  sell  her,  give  her  away, 
or  lend  her ;  and  she  has  no  right  of  redress  against  him.^  At  best 
she  may  escape  from  him  if  her  family  return  her  price  and  buy 
her  back.  Also,  there  is  nothing  in  this  order  of  ideas  to  p^e^■ent 
the  husband  buying  as  many  women  as  he  wishes.  This  extreme 
form  must  not  be  taken  as  the  normal  case.  Natural  feeling  after 
all  has  its  way  everywhere  in  the  world,  affection  and  the  sense  of 
kinship  survive  the  technical  exclusion  from  the  family,  and  so  we 
more  often  find  that  by  a  kind  of  compromise  the  wife's  relations 
retain  certain  powers  of  protecting  her.  Her  murder  would  in 
many  cases  excite  the  blood  feud,  and  if  she  runs  away  from  her 
husband,  and  can  satisfy  her  relations  that  she  had  good  cause 
in  his  ill-treatment,  they  will  in  many  instances  stand  by  her  and 
give  her  protection.^     Still,  her  position,  even  in  such  cases,  is 

1  It  must  not  be  assumed  that  marriage  by  purchase  always  implies 
father-right.  Under  mother-right  a  man  may  pay  a  bride  price  for  the 
usufruct  of  a  Avoman  (e.g.  among  the  Papuas,  Kohler,  "Z.  f.  V.  R.," 
1900,  pp.  .347,  348).  But  it  is  easy  to  see  that  out  and  out  purchase  goes 
naturally  with,  and  may  be  said  logically  to  necessitate  a  thorough-going 
paternal  system. 

2  Post  (i.  p.  171)  in.stances  former  customs  among  Parthians  and 
Armenians,  the  Gypsies,  Tscherkessen,  Maravis  of  South  Africa,  and 
ancient  Germans,  and  quotes  Caesar  on  the  Gauls:  "Viri  in  uxores  sicuti 
in  liberos  vitae  necisque  habent  potestatem."  Among  South  American 
Indians  the  father  can  lend,  sell,  or  exchange  the  wife.  (Schmidt,  I.  c, 
p.  298.)  The  right  of  the  husband  to  kill  the  wife  taken  in  adultery  is 
general  —  Post,  i.  p.  172,  says  "ganzlich  universell." 

'  See  above,  No.  9.  Among  the  Somali  and  in  the  Gaboon  the  hus- 
band who  kills  his  wafe  must  pay  a  fine  to  her  family.  (Post,  "Afrik. 
Jurisp.,"  p.  62.)  This,  I  suppose,  is  a  composition  for  blood  vengeance. 
So  too  among  the  Kafhrs.  (lb.,  p.  401.)  Among  the  Ainu,  Batchelor 
("The  Ainu  of  .Japan,"  p.  1.38)  notes  a  change.  Formerly  the  head  of  a 
family  had  absolute  powers  to  divorce,  disinherit  or  punish.  Now  little 
can  l)e  done  without  consulting  neighl)ours.  Among  the  Australians,  the 
clan  will  protect  the  wife  from  excessive  cruelty.  (Lctourncau,  "La 
Femme,"  p.  13;  Post,  I.  c,  p.  173.)  Among  the  Mandingos  the  wife  is 
protected  by  the  judge.  (Post,  "Afrik.  .Jurisp.,"  p.  402.)  Among  the 
Yoruba  by  her  family.  (Ellis,  op.  cit.,  187.)  Among  the  Malays  in  the 
"djudjur"  marriage  the  wife  passes  by  purchase  into  the  husband's  family, 
yet  the  v\'ife's  parents  can  interfere  to  protect  her  in  case  of  cruel  treatment. 
(Waitz,  V.  p.  144.)     According  to  Dr.  Westermarck  ("Position  of  Women 


266  PERSONS  [Part  II. 

rather  that  of  a  protected  dependent  than  of  a  free  woman. 
Slavery  is  still  slavery  though  the  position  of  the  slave  may  be  miti- 
gated by  law,  and  such  mitigation  is  in  reality  no  rare  occurrence 
even  for  the  actual  slave  at  the  level  of  civilization  which  we  are 
considering.^ 

The  appropriation  of  the  wife  consolidates  the  "  natural " 
family,  but  at  the  cost  of  a  more  or  less  complete  subordination  of 
the  wife.  Hence  the  position  of  the  woman  seems,  if  anything, 
to  change  for  the  worse  as  society  takes  its  first  step  in  advance. 
This  deterioration,  however,  is  perhaps  less  severe  than  appears 
at  first  sight. 

11.   The  Position  of  Woman  in  Early  Society. 

Favourable  as  the  position  of  woman  under  mother-right 
appears  on  the  surface,  the  truth  is  that  it  is  no  bar  whatever  to 
complete  legal  subjection.  Among  the  Caribs,  where  descent 
goes  through  the  female  only,  the  women  were  nevertheless  in  an 
inferior  position.  The  husband  alone  had  the  right  of  divorce 
and  he  could  exercise  it  at  will,  the  only  effect  of  mother-right 
being  that  in  case  of  divorce  the  wife  would  retain  the  children. 
Among  the  North  American  Indians  generally,  notwithstanding 
the  tendency  to  mother-right,  the  position  of  women  is  on  the  whole 
admitted  to  be  low.^  In  Melanesia,  where  there  is  strict  mother- 
right,  the  mother  is  in  no  way  head  of  the  family.  The  family 
house  is  the  father's,  the  garden  is  his,  the  rule  and  government 
are  his.^     In  Oceania  generally,  where  mother-right   is  common, 

in  Early  Civilization,"  "Sociological  Papers,"  p.  15.5),  "there  are  peoples 
among  whom  the  husband's  authority  is  almost  nil,  although  he  has  had 
to  pay  for  his  wife."  But  no  instances  are  given,  and  I  imagine  them  to 
be  rare.  An  interesting  trace  of  the  feeling  that  it  is  the  duty  of  a  wife's 
relations  to  avenge  her,  is  found  in  the  "Alcestis,"  vv.  731-3,  where 
Admetus'  father  threatens  him  with  the  vengeance  of  Alcestis'  brother, 
though  Alcestis  has  chosen  voluntarily  to  die  on  Admetus'  behalf.  Nat- 
urally, however,  the  right  of  protection  by  her  relations  is  more  effective 
when  the  wife  is  still  regarded  as  a  member  of  their  family.  {Post,  i. 
p.  173.) 

1  For  instances  see  Post,  i.  171-177. 

2  See  Waitz,  iii.  101,  382;  Cailin,  "N.  A.  Indians,"  i.  23  and  226. 
Ratzel  puts  it  that  the  position  of  the  women  is  not  in  all  cases  one  of 
oppression  (ii.  128). 

^  Codrington,  "J.  A.  I.,"  xviii.  309.  Dr.  W ester tiiorck,  who  on  the 
whole  takes  a  favourable  view  of  the  position  of  women  among  savages, 
declines  to  attribute  any  influence  in  this  direction  to  mother-right. 
("Sociological  Papers,"  p.  157;  "Moral  Ideas,"  655-7.)  Herein  he  is 
opposed  to  Steinmetz,  and  to  Ratzel.  (See  e.g.  Ratzel,  "The  History  of 
Mankind,"  ii.  334.)  The  argument  that  {e.g.  among  the  Australians) 
the  position  of  women  is  not  sensibly  affected  by  the  system  of  descent, 
is  not  very  forcible,  since  the  importance  of  the  family  is  so  small  as  com- 


Chap.  XII.]  WOMEN  IN   PRIMITIVE   SOCIETY  267 

the  two  sexes  are  in  large  measure  separated  in  their  Hves  through 
the  complex  mass  of  taboos  which  prohibit  their  intercourse.^  The 
head  of  the  maternal  family  may  have  the  same  despotic  power  as 
the  patriarch  —  thus  among  the  Barea  and  Kunama  he  has  the 
power  of  hfe  and  death;  among  the  Bangala,  the  Kimbunda, 
and  on  the  Loango  coast  the  right  of  selling  any  member  of  the 
family ;  and  in  general  under  the  maternal  as  under  the  paternal 
system  the  head  is  a  male.^ 

Apart  from  the  general  tendency  to  overlook  the  masculine 
headship  of  the  maternal  family,  and  so  confuse  mother-right  and 
matriarchy,  mistaken  views  have  arisen  from  the  identification 
of  marriage  by  service  with  the  subordination  of  the  husband  to 
the  wife.  The  man  who  cannot  buy  a  wife  becomes  a  servant 
to  her  family,  but  not  to  her.  Jacob  did  not  serve  Rachel,  but 
Laban,  and  when  the  term  of  service  was  completed  both  Leah 
and  Rachel  remark  that  they  have  now  passed  out  of  their  father's 
family.  They  identify  themselves  with  Jacob,  and  Rachel  steals 
Laban's  household  gods  on  his  behalf.  At  the  same  time  marriage 
by  service  does  fairly  illustrate  some  of  the  conditions  which 
modify  the  relation  of  husband  and  wiie,  and  may  even  affect 
the  question  whether  mother-  or  father-right  is  to  prevail.  The 
man  serves  because  he  has  not  the  property  wherewith  to  buy  him 
a  wife,  and  so  we  not  infrequently  find  that  the  two  kinds  of 
marriage  subsist  side  by  side.  Thus  among  some  Californian 
tribes  purchase  is  the  rule,  but  if  a  man  can  only  pay  half  the  bride 
price  he  enters  the  wife's  house  in  a  servile  position.^  Similarly 
among  the  ^Nlicronesians  of  Mariana  the  husband  must  serve  if 
he  has  not  wealth  enough  to  support  the  wife.  The  best  instance 
may  be  drawn  from  the  Malay  Archipelago,  where  the  two 
opposed  types  of  marriage  are  found  fully  developed  with  special 
names.  In  one,  Ambil  anak,  the  husband  is  purchased  by  the  wife's 
family ;  he  enters  it  as  a  rule  in  a  dependent  position,  the  chil- 
dren all  belong  to  the  mother's  family,  and  the  wife  has  the 
right  of  divorce.  In  the  other  form,  Djudjur,  the  husband  or  the 
husband's  family  has  to  purchase  the  wife  ;  she  becomes  his  prop- 
erty, the  children  are  his,  and  he  has  the  right  of  divorce.  Her 
parents  only  retain  a  certain  right  of  intervention  in  case  of  cruel 

pared  with  that  of  the  local  ^oup  and  its  divisions,  that  the  mode  of  reck- 
oning; descent  naturalh'  counts  for  little. 

1  In  some  instances,  however,  the  position  of  women  is,  or  has  been, 
favourable  in  Oceania,  e.g.  in  Micronesia,  and  in  Xew  Zealand.  {Ratzel, 
i.  273-274.  and  Wnitz,  iii.  101.) 

'^  Post.  "Grundriss,"  i.  134-6.     Post  notes  that  there  are  e.xeeptions. 

3  Kohlcr,  "Z.  f.  V.  R.,"  1897,  p.  383. 


268  PERSONS  [Part  II. 

treatment.^  In  such  cases  at  least  it  is  clear  that  the  relations  of 
husband  and  wife  are  determined  not  bj^  any  prevalent  custom  or 
opinion  prescribing  what  such  relations  ought  to  be,  but  by  the 
actual  success  or  failure  of  the  man  in  finding  means  whereby 
to  appropriate  a  woman  to  himself.-  Thus  the  differences  between 
the  maternal  and  paternal  systems  do  not  turn  on  divergencies  of  • 
principle  as  to  the  rights  of  women,  nor  does  the  superior  position 
of  the  wife's  family  necessarily  imply  any  similar  superiority  in 
the  wife  herself.  No  doubt  under  mother-right  the  woman  derives 
some  advantages  from  her  position,  such  as  the  retention  of  her 
children  in  case  of  divorce,  but  the  cases  in  which  it  has  given  her 
real  equality  or  superiority  prove  on  examination  to  be  very  rare. 
Among  the  Nairs,  who  are  sometimes  quoted  in  this  connection, 
and  who,  as  has  been  mentioned,  combine  polygamy  and  polyandry, 
the  woman  chooses  her  husband  and  brings  him  to  her  home. 
Possessions  pass  from  mother  to  daughter.  The  woman  may  divorce 
her  husband,  or  rather  any  of  her  husbands,  at  pleasure.  Among 
some  of  the  tribes,  e.g.  the  Pani  KotcJie,  the  husband  goes  to  live 
with  his  mother-in-law,  who  is  head  of  the  house,  and  may  incur 
no  expense  without  her  authority  or  else  he  is  personally  respon- 
sible. It  sometimes  happens  that  for  this  reason  he  is  sold  as  a 
slave.^  Often  a  brother  and  sister  set  up  house  together,  the  tie 
between  them  being  held  closer  than  that  between  husband  and 
wife,  and  if  in  such  a  case  the  wife  goes  to  live  with  a  husband 
she  will  be  subject  to  the  sister.     It  follows  also  that  the  child 

1  Waitz,  V.  i.  144  ff.  Cf.  Marsden,  "History  of  Sumatra,"  p.  220,  etc., 
cited  in  Spencer's  "Descriptive  Sociology." 

2  We  may  note  in  this  connection  that  among  civihzed  peoples  which 
have  completely  developed  the  patriarchal  system,  and  perhaps  even 
passed  beyond  its  extreme  phases,  there  is  a  tendency  to  the  subjugation  of 
the  husband,  in  cases  where  women  are  allowed  control  of  their  own 
property,  if  the  wife  is  the  wealthy  one.  I  am  not  speaking  from  the 
point  of  \iew  of  the  humorist  or  the  novelist,  but  of  the  lawyer.  Thus, 
few  peoples  have  pushed  the  right  of  the  father  to  a  more  extreme  point 
than  the  Japanese  in  the  Far  East,  or  the  ancient  Romans  in  the  West. 
Yet  ainong  the  Romans,  when  women  acquired  by  the  Lex  Julia  com- 
plete control  over  their  dowry,  the  result  was  that  the  husband  frequently 
passed  into  practical  subjugation  to  a  rich  wife.  In  Japan  it  is  aston- 
ishing to  find  the  recrudescence  of  the  primitive  custom  of  the  husband 
coming  to  live  with  the  -wife,  and  taking  her  name  in  the  case  where  the 
eldest  daughter  inherits  an  estate,  or  where  the  bride's  father  supplies 
the  house.  From  instances  like  these,  drawn  from  cases  where  the 
patriarchate  had  its  most  extreme  development,  we  can  understand  the 
full  strength  of  the  economic  factor  in  determining  marital  relations,  and 
we  may  draw  the  inference  that  where  in  the  unci\alized  world  we  find  the 
husband  passing  into  the  Avife's  family,  even  in  an  inferior  position,  it 
'does  not  folloAv  that  any  favouralile  inference  is  to  be  drawn  as  to  the 
prevalence  of  an  ethical  conception  of  women's  rights. 

''See  Reclus,  "Primitive  Folk,"  pp.  156-8. 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  269 

is  attached  to  the  uncle  rather  than  the  father.  In  such  an  organi- 
zation the  family,  as  we  understand  it>  is  of  course  completely 
broken  up,  and  there  is  no  doubt  that  the  position  of  the  woman 
makes  her  in  a  way  the  centre  of  the  whole  organization.  There 
is  equally  no  doubt  that  in  this  case  she  acquires  from  this  position 
a  considerable  authority.  But  we  are  also  told  that,  although  she 
inherits  the  property,  her  brother  or  maternal  uncle  administers 
it,  and,  again,  it  is  administered  rather  on  behalf  of  the  whole 
group  of  kinsfolk  —  that  is  to  say,  as  collective  property  • —  than 
as  belonging  to  any  individual  owner,  so  that  after  all  we  are  not 
very  far  removed  from  the  normal  state  of  things  under  mother- 
right,  where  the  woman  is  subject  to  her  brothers  instead  of  to  her 
husband. 

Somewhat  similar  cases  may  be  cited  from  among  the  North 
American  Indians.  Here  the  women  had  occasionally  a  certain 
measure  of  political  importance ;  for  example,  they  might  be  rep- 
resented by  a  spokesman,  either  male  or  female,  at  the  men's 
covmcil,  and  they  sometimes  originated  warlike  expeditions  with 
the  object  of  replacing,  by  a  raid  and  the  capture  of  a  prisoner, 
the  loss  of  a  warrior  of  the  clan.  To  them,  also,  as  we  shall  see 
later  on,  was  referred  in  many  cases  the  fate  of  the  prisoners 
taken.  They  decided  whether  prisoners  should  be  tortured  or 
adopted,  and,  moreover,  took  a  special  part,  with  a  peculiar  zest, 
in  the  execution  of  the  tortures  when  a  decision  was  taken  in  that 
direction. 

Among  the  Iroquois,  where  we  have  some  of  the  most  detailed 
accounts,  we  are  told  that  the  women  occupied  a  dominant  posi- 
tion in  the  Long  House  where  the  joint  family  lived.  "Usually 
the  female  portion  ruled  the  house,  and  were  doubtless  clannish 
enough  about  it.  Stores  were  in  common,  and  woe  to  the  luckless 
husband  or  lover  who  was  too  shiftless  to  do  his  share  of  the  pro- 
viding. No  matter  how  many  children  or  whatever  goods  he 
might  have  in  the  house,  he  might  at  any  time  be  ordered  to  take 
up  his  blanket  and  budge.  .  .  .  The  house  would  be  too  hot  for 
him,  and  imless  saved  by  the  intercession  of  some  aunt  or  grand- 
mother, he  must  retreat  to  his  own  clan,  or,  as  was  often  done,  go 
and  start  a  matrimonial  alliance  in  some  other."  ^  The  women, 
says  jNIorgan,  were  the  great  power  in  the  clans.  They  could 
"knock  off  the  horns"  of  a  chief,  and  of  certain  chiefs   the}'  had 

1  FrojQ  a  letter  by  the  Rev.  A.  Wright,  a  missionary  among  the  Seneeas, 
written  in  1873,  and  given  in  Morgan's  "Houses  and  Houselife  of  the  Amer- 
ican Aborigines,"  p.  G5.  It  is  worth  noting  that  Mr.  Wright  apjjcars  to 
be  describing  a  past  state  rather  than  that  which  he  actually  saw. 


270  PERSONS  [Part  II. 

the  nomination.  Yet  even  among  the  Iroquois  we  do  not  find  that 
the  position  of  women  was  altogether  good.  On  the  contrary, 
they  did  all  the  drudgery  of  house  and  field.  They  were  socially 
separate  from  the  man,  and  the  conquered  Delaware  were  named 
women  as  a  term  of  reproach,  and  compelled  to  forego  arms  as  a 
mark  of  contempt.^  Of  the  North  American  Indians  generally, 
Waitz  ^  makes  a  remark  which  goes  to  the  root  of  the  matter,  that 
though  property  passed  by  the  women  they  seem  to  have  had 
little  or  none  of  their  own.  There  remain  a  few  scattered  cases 
in  which  the  wife  —  not  merely  the  wife's  family  —  is  said  to 
enjoy  superiority  or  even  authority.  Among  the  Koochs  of 
Bengal  it  is  stated  by  Dalton  that  the  husband  goes  to  live  in  the 
wife's  clan,  and  that  his  property  passes  to  her  daughters  only, 
and  not  only  this,  but  he  has  to  obey  his  wife,  and  what  is,  per- 
haps, more  extreme,  her  mother  as  well.^  According  to  Herrera, 
men  in  Nicaragua  in  his  day  become  slaves  to  their  wives,^  and 
among  the  tribes  of  Esquimaux  at  Nootka  Sound  and  at  Cross 
Sound,  women  are  somewhat  vaguely  said  to  have  a  superior 
position  to  men.^  Other  cases  ®  in  which  a  higher  position  is 
attributed  to  the  wife  either  depend  on  her  superior  social  or 
economic  position,  or  on  the  failure  of  the  husband  to  pay  her  price.^ 
They  do  not  indicate  that  the  position  of  the  woman  is  as  such 
equal  or  superior  to  that  of  the  man.^ 

A  handful  of  exceptions  such  as  these,  however  interesting  as 
disproving  sweeping  generalizations,  do  not  alter  the  fact  that 

1  Schoolcraft  —  Drake,  i.  277,  388.  Morgan,  "League  of  the  Iroquois," 
323. 

2  Waits,  iii.  129.         ^  Letourneau,  "La  Femme,"  p.  384.  *  76.,  175. 
5  Waitz,  iii.  327-333. 

^  The  well-known  statement  of  Diodorus  as  to  the  supremacy  of  Egyp- 
tian wives  will  be  dealt  with  below  [chap.  xv]. 

'  In  one  or  two  other  rare  cases  the  law  of  divorce  favours  the  wife. 
For  instance,  among  the  Khonds  of  Orissa  she  may  leave  her  husband  on 
repaying  her  price,  but  may  only  be  divorced  for  adultery  or  misconduct. 
(Dr.  Westermarck  states  that  constancy  is  not  required  from  the  wife,  and 
that  the  husband  may  be  punished  for  adultery.  "Sociol.  Papers," 
p.  152.)  The  husband  may  not  strike  the  wife  taken  in  adultery  —  a 
very  exceptional  rule.  {Reclus,  p.  281.)  These  liberties  appear  to  be 
connected  ^vith  a  scarcity  of  wives,  and  with  the  relies  of  polyandry. 
(Reclus,  ib.) 

8  In  addition  to  the  above  list,  Post,  "A.  J.,"  400,  considers  that  the 
position  of  the  Avife  among  the  Sarae  is  equal  to  that  of  the  husband,  and 
even  superior  among  the  Beni  Amer  and  the  Galla.  But  among  the 
last-named  he  adds  that  if  the  husband  has  once  brought  home  the  trophies 
of  a  departed  enemy,  he  becomes  absolute  master.  According  to  Hahn 
(quoted  by  Westermarck,  op.  cit.,  p.  154),  the  Khoikhoi  (Hottentot)  wife 
is  mistress  within  the  house,  but  according  to  Kohler,  "Z.  f.  V.  R*,"  1902, 
pt.  iii.  344,  355  (speaking  of  the  Hottentots  generally),  though  the  v,afe 
has  a  fairly  independent  position,  the  husband  has  the  right  to  chastise 
her  in  moderation. 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  271 

in  the  great  majority  of  uncivilized  peoples  the  position  of  women 
is  in  greater  or  less  degree  inferior  to  that  of  man  in  point  of  personal 
rights/  Apart  from  a  sufficiently  frequent  inferiority  in  her  right 
to  property  or  to  the  mere  protection  of  life  and  limb,  apart  from 
the  fact  that  the  drudgery  of  life  so  often  falls  on  her  while  the 
men  hunt  or  fight,"  the  prevalence  of  the  capture,  purchase  and 
exchange  of  wives  testifies  strongly  in  this  direction.  The  common 
facility  of  divorce,  even  where  the  conditions  are  equal  to  the  two 
parties,  tells  against  the  woman,  who  is  the  more  interested  of 
the  two  in  the  permanance  of  the  tie.     And  very  often  the  condi- 

1  Dr.  Westermarck,  who  objects  to  the  term  "subjection"  as  a  general 
description  of  the  position  of  women  in  the  lower  races,  WTites  :  "Among 
many  of  them  the  married  woman,  although  in  the  power  of  the  husband, 
is  known  to  enjoy  a  remarkable  degree  of  independence,  to  be  treated  by 
him  ■ftith  great  consideration,  and  to  exercise  no  small  influence  upon 
him.  In  several  cases  she  is  even  stated  to  be  his  equal,  and  in  a  few  his 
superior."  ("Soe.  Papers,"  p.  151.)  Admitting  this  to  be  the  case,  we 
shall  clearly  be  right  in  persisting  that  in  the  great  majority  of  cases 
women's  legal  position  is  inferior.  It  may  be  added  that  considerate 
treatment  is  a  totally  different  thing  from  equality  of  rights.  In  his  new 
Avork  on  "The  Origin  and  Development  of  the  Moral  Ideas,"  Dr.  Wester- 
7narck  gives  a  long  list  of  cases  in  which  the  wife's  position  is  more  or  less 
favoured.  But  in  comparatively  few  of  them  is  equality  of  rights  as- 
serted, and  in  still  fewer  superiority.  Even  where  equal  rights  are  men- 
tioned, the  statements  with  two  or  three  exceptions  lack  precision.  Dr. 
Westermarck  himself  says  :  "All  these  statements  certainly  do  not  imply 
that  the  husband  has  no  recognized  power  over  his  wife,  but  they  prove 
that  his  power  is  by  no  means  unlimited.  It  is  true  that  many  of  our 
authorities  speak  rather  of  liberties  that  the  woman  takes  herself  than  of 
privileges  granted  her  by  custom;  but,  as  we  have  seen  before,  customarj- 
rights  are  always  more  or  less  influenced  by  habitual  practice."  (P.  646, 
the  italics  are  mine.)  The  distinction  here  admitted  cuts  deeper  than 
Dr.  Westermarck  seems  to  admit.  In  a  relationship  so  personal  and 
subtle  as  that  between  men  and  women,  de  facto  influence  and  power  may 
develop  to  the  highest  pitch,  without  in  the  least  affecting  the  recognized 
rights  or  status  of  the  sex.  A  favourite  of  the  harem  may  sway  an  empire 
and  yet  remain  a  slave.  The  frequent  statement  of  travellers  that  the 
wife  rules  the  household,  or  that  the  husband  does  nothing  A\ithout 
consulting  her,  might  have  been  made  of  tliis  country  in  the  days  when 
the  legal  position  of  the  wife  was  most  abject.  The  power  to  influence 
and  recognized  ethical  equality  are  not  only  different,  but  have  no  neces- 
sary tendency  to  pass  into  one  another. 

^  The  extent  to  which  women  fill  the  place  of  slaves  in  the  rudest 
societies  has  perhaps  been  exaggerated  by  some  \vriters.  Dr.  Weste?-- 
viarck  ("Sociol.  Papers,"  p.  150)  points  out  that  for  the  men  to  fight 
while  the  women  toil,  is  a  natm'al  division  of  labom*  in  a  world  where 
fighting  is  a  frequent  necessity.  But  this,  though  it  explains,  hardly 
alters  the  fact  that  an  occupation  recognized  as  inferior  falls  to  the  women. 
(Cf.  Westermarck,  "Moral  Ideas,"  pp.  633-637.)  There  are  many  varia- 
tions, and  it  would  be  easy  to  multiply  quotations  on  either  side,  but  on 
the  whole  it  seems  clear  that  the  more  toilsome  and  least  esteemed  work 
tends  to  fall  on  the  women.  See  the  general  statements  in  Ratzel,  as  to 
Oceania,  vol.  i.  p.  273;  the  Malay  Region,  ib.  p.  441;  North  America, 
ii.  p.  129  ;  the  Arctic  races,  p.  225  ;  the  Negroes,  p.  334  ;  Kaffirs,  pp.  432, 
433;  and  the  Mongols,  iii.  p.  341.  The  position  in  the  two  first-named 
regions  is  the  most  favourable,  particularly  among  the  more  developed 
peoples. 


272  PEKSONS .  [Part  II. 

tions  are  not  equal,  but  favourable  to  the  man.  The  general 
permission  of  polygamy  points  in  the  same  direction.  Lastly, 
the  woman's  person  is  not,  strictly  speaking,  her  own  property, 
but  that  of  her  husband  or  guardian,  and  it  is  in  this  sense  in  the 
great  preponderance  of  cases  that  chastity  and  respect  for  women 
are  understood  in  the  savage  and  barbaric  world.  This  pecu- 
liarity makes  itself  felt  in  many  directions.  In  the  first  place 
wife  lending  is  an  extremely  common  custom  among  savages. 
The  husband  who  would  kill  or  mutilate  the  wife  whom  he  dis- 
covered in  clandestine  intercourse  with  a  lover  will  also  lend 
her  as  a  matter  of  courtesy  to  a  guest.^  In  the  one  case  she  in- 
fringes his  right  of  property,  in  the  other  case  it  is  as  his  property 
that  she  is  acting.^  She  is  not  in  our  modern  phrase  a  person  with 
the  full  rights  of  self-respect  and  respect  from  others  attaching  to 
personality.  Secondly,  where  the  obligations  of  marriage  are 
binding  the  rules  for  the  unmarried  are  often  very  lax.  Further, 
the  principal  exception  to  this  laxity  is  constituted  by  the  system 
of  child  betrothal,  whereby  the  unwedded  girl  is  already  the 
husband's  property.^  Generally  speaking,  the  requirement  of 
chastity  depends  on  the  developed  power  of  the  guardian."*  Thirdly, 

'  Numerous  instances  are  given  by  Starcke  (p.  122)  and  Westermarck 
(pp.  73,  74).  The  custom  is  pretty  general  among  the  North  American 
Indians.  {Waitz,  iii.  p.  111.  He  excepts  onlv  the  Sioux  and  the  Chippe- 
way.)  Cf.  Schoolcraft,  v.  p.  684.  Post,  "Afrik.  Jurisp.,"  i.  pp.  471,  472, 
gives  numerous  instances  in  Africa.  Waitz,  v.  ii.  p.  105,  attributes  the 
practice  to  the  Micronesians  generally. 

2  In  the  Torres  Straits  any  irregular  intercourse  was  called  "stealing  a 
woman,"  and  there  seems  to  have  been  no  word  for  fornication  or  adul- 
tery apart  from  theft  (puru).     ("Cambridge  Expedition,"  275.) 

^  Where  the  young  girls  are  guarded,  precautions  are  sometimes  pushed 
to  disagreeable  lengths,  as  in  New  Britain,  where,  between  eight  and  ten, 
they  are  put  into  cages  and  kept  there  till  they  are  married. 

*  Post,  i.  pp.  21-23.  The  first  step  towards  insistence  on  the  chastity 
of  unmarried  and  unbetrothed  girls,  is  taken  when  the  husband  expects 
virginity  at  the  time  of  marriage.  Unchastity  may  then  become  a  breach 
of  the  proprietary  rights  of  the  guardian.  Hence  it  is  often  punishable, 
especially'  if  it  results  in  pregnancy.  Thus  among  the  Takue,  the  Marea 
and  the  Beni  Amer,  the  seducer  who  makes  an  unmarried  girl  pregnant 
excites  the  blood  feud,  and  among  the  Bogos  the  full  blood  price  is  de- 
manded in  such  a  case.  {Post,  "Afrik.  Jurisp.,"  i.  pp.  61  and  70.)  Among 
the  Wanyamwesi  the  lover  must  marry  the  pregnant  girl  under  a  penalty 
of  a  fine  {Post,  "A.  J.,"  i.  p.  458),  and  in  Unyoro  she  is  taken  to  liis  house, 
and,  b3'  a  characteristic  piece  of  primitive  reasoning,  he  must  pay  for  her 
if  she  dies,  while  if  she  lives  she  returns  to  her  father  unless  the  lover 
paj's  the  bride  price.  (For  other  instances  in  Africa,  see  Post,  ib.,  p.  459, 
ii.  p.  70,  and  cf.  Le/ow7-/i<?rtu,  "La  Femme,"  p.  48.) 

Westermarck  (pp.  61-64)  enumerates  OA-er  thirty  eases  among  uncivil- 
ized races  where  unchastity  out  of  wedlock  is  condemned  —  but  to  some 
of  these  there  are  qualifications,  e.g.  among  the  Gypsies  and  Kalmucks 
unchastity  is  tolerated  and  it  is  only  the  birth  of  a  child  that  is  a  disgrace. 

In  some  instances,  the  unchastity  of  an  unmarried  woman  is  regarded 
as  bringing  a  curse  or  some  misfortune  on  the  family  or  the  tribe.      Thus 


Chap.  XII.]  WOMEN   IN   PRIMITIVE   SOCIETY  273 

the  claim  to  fidelity  is  usually  one-sided,  ^^^^ile  any  offence 
on  the  wife's  part  exposes  her  to  punishment,  and  while  an  out- 
raged husband  may  lawfully  avenge  himself  on  the  man  who  has 
trespassed  on  his  property,  the  unfaithfulness  of  the  husband  to 
the  wife  is  but  seldom  regarded  as  an  offence.^     Finally,  it  is  often 

the  Aleuts  fear  that  the  whale  would  punish  them  if  their  -nives  were  un- 
faithful in  their  absence,  or  if  their  sisters  were  unchaste  before  marriage. 
(Reclus,  p.  52.)  Similarly  in  Loango,  the  unchastitj'  of  a  girl  is  held  to 
bring  a  curse  on  the  country  {Westermarck,  p.  61),  and  a  similar  idea 
seems  to  underlie  the  punishment  of  a  pregnant  maiden  on  the  Gold  Coast, 
where  she  is  chased  by  the  women  to  the  sea,  covered  with  dirt  and 
ducked,  after  which  she  receives  charms  from  the  fetishman.  {Post, 
"  A.  .J.,"  i.  p.  460.)  Apparently  this  is  not  so  much  by  way  of  punishment 
as  to  avert  e%*il. 

With  a  few  exceptions  such  as  these,  we  may  say  that  among  uncivil- 
ized races  unchastity  is  regarded  universally  as  an  infringement  of  rights 
of  property',  and  that  generally  only  the  rights  of  the  husband  present 
or  future  are  considered,  but  that  in  some  cases  the  value  of  a  woman  is 
depreciated  by  the  loss  of  \-irginit3%  and  this  is  accordingly  regarded  as 
the  infringement  of  the  rights  of  her  guardian.  The  man  is  of  course 
punished,  often  "s\ith  death,  for  the  infringement  of  these  rights.  We 
may  find  the  germ  of  a  different  conception  in  the  belief  that  the  unchas- 
tity of  a  man  under  certain  conditions  will  cause  misfortune.  Thus  the 
Aleuts  above  quoted  believe  that  the  whale  will  pimish  them,  not  only 
if  their  wives  are  unfaithful,  but  if  they  are  unfaitliful,  while  on  a  fishing 
expedition,  to  their  wives.  It  is  a  ^idelj'-diffused  belief  among  the 
North  American  Indians  that  unchastity  on  the  war  path  would  bring 
defeat,  and  hence  captive  women  are  generally  spared.  For  the  rare 
eases  in  which  a  husband  incm's  penalties  to  his  wife  for  unfaithfulness 
see  next  note. 

1  Authorities  give  one  instance  to  the  contrary  among  African  peoples, 
■viz.  in  Great  Bassam.  Here  the  husband  pays  a  fine  to  the  wife  if  un- 
faithful to  her  while  she  is  with  the  prince.    (Post,  "  Afrik.  .Jurisp.,"  ii.  p.  72.) 

Among  the  Hottentots  the  husband  as  well  as  the  wife  may  be  flogged 
for  adultery,  and  except  for  ill-treatment  there  is  no  divorce  without  the 
consent  of  the  council.  But  these  observations  refer  to  Christianized 
tribes.  (Kohler,  "Das  Recht  der  Hottentotten,"  "Z.  f.  V.  R.,"  1902, 
pp.  344  and  354.) 

Among  the  Mariana  the  husband  could  kill  an  adulteress,  but  if  he  on 
his  side  were  unfaithful,  he  would  be  set  upon  and  would  be  glad  to  escape 
with  a  whole  skin.      {Waitz,  v.  ii.  p.  106.) 

The  Sioux  and  Santal  (Dakota)  women  are  said  to  beat  their  husbands 
for  unfaithfulness.      (Howard,  i.  p.  239.) 

According  to  Dr.  Westermarck.  among  the  Shans  of  Burmah  the  wife 
maj-  divorce  the  husband  for  drinking  or  other  misconduct,  retaining  the 
common  property.  (Wester tnarck,  "Sociol.  Papers,"  p.  1.54.)  But  Col. 
Woodthorpe  ("J.  A.  I.,"  xxAi.  p.  21)  states  that  the  Shans  of  the  Upper 
Mekong  follow  the  law  of  Manu  as  to  divorce,  i.e.  the  wife  has  no  powers 
of  divorce  at  all.  In  W.  Victoria,  as  mentioned  above  (Howard,  i.  p.  229), 
a  wife  may  get  a  slight  punishment  inflicted  on  an  unfaithful  husband, 
and  in  some  Queensland  trilies  the  women  take  advantage  of  the  initia- 
tion ceremonies  to  punish  men  who  have  ill-treated  them.  (Westerjnarck, 
"Sociol.  Papers,"  p.  148.)  The  case  of  the  Khonds  has  been  mentioned 
above. 

As  mentioned  above.  Powers  states  that  among  the  Karoks  of  Cali- 
fornia cohabitation  even  with  a  female  slave  is  considered  disgraceful. 
Tw  o  or  three  more  similar  instances  are  found  among  the  North  American 
Indians. 

We  could  prolong  the  above  list  if  we  were  to  add  cases  in  which  bring- 


274  PERSONS  [Part  II. 

open  to  fathers  to  devote  their  daughters  to  prostitution.  This 
is  not  infrequently  a  rehgious  duty,  and  in  many  cases  there  are 
recurring  rehgious  festivals  of  which  promiscuous  intercourse  is  a 
feature.^ 

12.  All  the  world  over,  certain  forces,  ethical,  political,  economic, 
and  perhaps  religious,  act  from  either  side  upon  the  relations  of 
men  and  women.  On  the  whole,  apart  from  a  sufficiently  strong 
development  of  the  ethical  factors,  those  which  fight  for  the  man, 
as  physically  the  stronger,  have  the  upper  hand.  But  when  there 
are  always  forces  tending  the  other  way,  favourable  circumstances 
will  occur  here  and  there  to  give  them  peculiar  strength.  For 
example  the  circumstances  attending  marriage  by  service,  espe- 
cially when  we  compare  it  with  marriage  by  purchase  or  capture, 
have  shown  us  how  much  the  relations  of  husband  and  wife  are 
determined  by  what  in  the  modern  world  we  should  call  the  eco- 
nomic factor.  The  savage  woman's  price  —  if  by  price  we  mean  the 
difficulty  of  appropriating  her  —  may  be  high  or  low.  Where  it  is 
always  possible  to  organize  a  raid  and  carry  her  off  it  is  decidedly 
low,  and  she  becomes  the  captor's  property.  Where  this  is  not 
countenanced,  it  is  possible  to  buy  her  from  her  guardian,  and 
then  presumably  her  price,  like  that  of  other  things,  is  a  matter 
of  supply  and  demand.  The  actual  number  of  girls  born  and  the 
practice  as  to  infanticide  must  affect  their  value,  and  we  can  under- 
stand that  better  treatment  of  a  wife  becomes  necessary  to  the 
husband  who  wishes  to  retain  her.^  In  other  cases  the  economic 
value  of  the  woman  may  be  high  —  for  example,  where  agriculture 
is  becoming  important  and  is  still  regarded  as  women's  work.  In 
yet  other  cases  women  are  the  repositories  of  magical  lore,  and  men 
fear  them.^  These  and  doubtless  other  disturbing  causes  consider- 
ably modify  the  status,  nominal  or  real,  of  women  in  the  uncivilized 
world,  but  the  fluctuations  which  they  cause  are  fluctuations 
about  a  centre  of  gravity  which  is  sufficiently  low. 

ing  a  second  \vife  or  a  concubine  into  the  house  is  a  ground  of  divorce. 
Broadly  spealdng,  however,  in  the  savage  world,  under  mother-right  or 
father-right,  the  husband  is  master  of  the  wife's  person. 

1  For  instance  in  Africa,  see  Post,  "Afrik.  Juris.,"  p.  465.  In  several 
Australian  tribes  the  women  are  common  at  the  corroboree,  except  to  their 
fathers,  brothers  or  sons  by  blood.      (Spencei-  and  Gillen,  p.  97.) 

2  Hence  probably  the  favourable  position  often  enjoyed  bj'  women  in 
polyandrous  communities.  To  us  polyandry  seems  necessarily  degrading 
to  a  woman.  To  the  women  of  the  polyandrous  tribe  it  means  that  they 
are  sought  after,  and  therefore  prized. 

^This  important  suggestion  is  due  to  Dr.  Westermarck  ("Soc.  Papers," 
p.  159),  who  is  also  inclined  to  lay  stress  on  the  economic  factor.  (On 
this  point  cf.  Ratzel,  ii.  130.) 


Chap.  XII.]  WOMEN   IX    PRIMITIVE   SOCIETY  2iO 

To  sum  up  our  account  of  marriage  in  the  uncivilized  world. 
We  have  found  two  distinct  forms  of  the  family,  the  one  based 
on  mother-right,  the  other  on  father-right.  Under  mother-right 
the  woman  is  undoubtedly  the  legal  centre  of  the  family.  From 
this  she  sometimes  derives  certain  advantages,  such  as  the  power  to 
leave  or  dismiss  a  bad  husband,  or  the  right  to  retain  her  children. 
But,  as  a  rule,  when  looked  into,  her  position  is  found  to  be  in- 
ferior. She  is  held  in  little  respect,  and  is  seldom  the  owner  of 
the  property  which  passes  in  her  name.  The  cases  in  which  she  en- 
joys a  real  equality  \\'ith  men  prove  on  examination  to  be  ex- 
ceedingly rare.  The  characteristic  of  the  lower  savage  life  is 
rather  that  the  family  is  as  yet  incompletely  organized.  Hence 
the  facility  of  divorce,  which  is  often  so  great  that  marriage  can 
scarcely  be  said  to  exist,  hence  also  the  sporadic  appearance  of 
polyandry  and  partial  promiscuity.  The  advent  of  father-right 
implies  on  the  whole  a  firmer  organization.  The  wife  now  passes 
out  of  the  hands  of  her  own  kindred,  and  is  appropriated  by  her 
husband,  whether  as  the  result  of  capture,  purchase,  or  service. 
Her  legal  position  often  becomes  semi-servile  or  worse,  and  though 
socially,  as  among  the  ancient  Germans  and  the  early  Romans, 
she  is  often  held  in  high  respect,  her  incorporation  in  her  husband's 
family  is  often  pushed  to  such  an  extreme  that  her  subordination 
does  not  end  with  his  death.  In  some  instances  she  follows  him 
to  the  grave.  In  others,  where  she  belongs  to  the  family  rather 
than  to  the  individual,  she  becomes  the  property  of  his  brother, 
or  of  the  male  head  of  the  clan. 

Under  both  forms  of  marriage  the  permission  of  polygamy  is  the 
rule,  and  divorce  is  easy  for  the  husband.  Under  the  second 
form  it  is  generally  less  easy  for  the  wife.  Under  both,  moreover, 
it  is  not  easy  for  the  wife  but  the  woman  that  is  under  tutelage. 
The  civilized  conception  of  the  sanctity  of  woman  exists  only  in 
germ ;  her  destinies,  her  freedom  and  often  her  life  are  in  manj' 
cases  at  the  disposal  of  her  legal  guardians.   .   .   . 


Chapter  XIII 

MARRIAGE 

Section  1 

FORMS   OF   MARRIAGE! 

The  institution  the  purpose  of  which  is  to  serve  propagation 
and  all  the  psychic  impulses  and  ideals  that  surround  it,  is  mar- 
riage. Its  development  and  the  form  it  took  among  the  different 
nations  is  one  of  the  most  fascinating  studies  of  scientific  research  ; 
but  we  cannot  follow  it  here.  Nor  can  we  deal  at  length  with  its 
original  form,  group-marriage,  in  which  reproduction  took  place 
in  groups,  the  members  of  which  were  married  to  a  group  of  hus- 
bands and  wives,  both  men  and  women  being  common  husbands 
and  wives.  This  has  been  elsewhere  authenticated,  and  we  need 
only  add,  that  when  people  seek  to  refute  the  fact  by  pointing  out 
the  sexual  relations  that  exist  among  the  anthropoid  apes,  etc., 
that  live  in  small  companies,  w^e  may  reply  that  it  is  a  characteristic 
of  mankind  to  strive  and  work  together  in  larger  numbers,  and  in 
earlier  times  the  form  of  marriage  that  corresponded  to  this  mode 
of  life  was  not  monogamy  but  group-marriage. 

Group-marriage  may  lead  to  polyandry,  a  form  that  is  still 
found  among  a  large  number  of  peoples,  a  common  custom  being 
for  several  brothers  to  have  but  one  wife.  This  has  certain  psychic 
advantages,  but  also  the  weighty  disadvantage  that  it  decreases 
the  population  —  especially  when  it  is  combined  with  the  slaughter 
of  the  female  children,  the  only  means  of  explaining  the  consistent 
carrying  out  of  such  a  system. 

Much  more  frequent,  in  later  periods,  is  polygyny  (or  polyg- 
amy) which  follows  naturally  in  the  wake  of  capture  and  pur- 
chase marriage ;  for,  whatever  a  man  takes  possession  of,  or 
acquires  in  this  way,  he  regards  as  his  own.     The  great  expense 

^  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Alhrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

276 


Chap.  XIII,  §  2.]  MARRIAGE  277 

of  such  a  custom,  however,  often  interferes  vrith  its  practice; 
and  it  must,  therefore,  be  regarded,  even  among  the  peoples  that 
permit  it,  as  an  exception,  not  as  the  rule. 

The  civilized  peoples  of  to-day  are  sharply  divided  into  nations 
of  Christian  and  nations  of  INIohammedan  culture.  While  Mo- 
hammedan culture  has  retained  polygamy,  all  Christian  peoples 
have  adopted  monogamy,  and  regard  this  institution  as  such  an 
essential  principle  of  their  cultural  order  that  they  have  declared 
bigamy  to  be  a  grave,  major  crime.  The  cultural  idea  that  under- 
lies this,  is  that  a  mutual  psychic  intermingling  of  lives  is  made 
possible  only  by  the  self-restraint  of  two  individuals,  and  that  a 
plurality  of  wives  must  lead  of  itself  to  the  basest  passions,  to  an 
egoistic  self-assertion  that  poisons  marriage,  and  to  constant  petty 
jealousies,  suspicions,  and  prejudices,  unless  the  wives  are  in  com- 
plete subjection,  and  consequently  are  mentally  inferior  and  with- 
out self-assertion  —  a  condition  that  is  equally  detrimental  to  all 
development.   .   .    . 


Section  2 

TRIBAL   MARRIAGE    LAW  i 

A  tribe  cannot  be  developed  through  the  expansion  of  a  clan. 
The  clan  is  not  the  antecedent  of  the  tribe,  nor  is  the  tribe  the 
antecedent  of  the  clan.  A  clan  is  an  integral  part  of  a  tribe,  and 
there  is  no  tribe  without  the  clans  of  which  it  is  composed,  and 
no  clan  without  the  tribe  of  which  it  is  a  part.  The  communal 
family  seems  to  be  the  antecedent  of  the  tribe ;  but  a  single  com- 
munal family  could  not  develop  into  a  tribe.  A  tribe  seems  to 
have  primitively^  been  a  federation  of  communal  families.  WTiat- 
ever  its  primitive  origin,  the  special  organization  of  any  particular 
tribe  must  have  been  accomplished  by  combining  bodies-politic 
that  were  previously  distinct,  and  the  basis  of  federation  must 
have  been  one  of  intermarriage.  In  the  simplest  form  two  such 
distinct  bodies  could  unite  by  making  an  agreement  that  the 
women  of  each  should  become  the  wives  of  the  other.  If  three 
bodies-politic  combine,  the  women  of  A  might  become  the  wives 
of  the  men  of  B,  the  women  of  B  wives  of  the  men  of  C,  and  the 
women  of  C  wives  of  the  men  of  A.  In  the  thirty-fourth  chapter 
of  Genesis  we  read : 

'  [By  J.  W.  Powell.  Reprinted,  by  permission,  from  the  3d  Annual  Re- 
port of  the  American  Bureau  of  Ethnology  (The  Smithsonian  Institution).] 


278  PERSONS  [Part  II. 

"And  Hamor  the  father  of  Shechem  went  out  unto  Jacob  to 
commune  with  him. 


"And  Hamor  communed  with  them,  saying,  The  soul  of  my 
son  Shechem  longeth  for  your  daughter :  I  pray  you  give  her  him 
to  wife. 

"And  make  ye  marriages  with  us,  and  give  your  daughters  unto 
us,  and  take  our  daughters  unto  you. 

"And  ye  shall  dwell  with  us  :  and  the  land  shall  be  before  you ; 
dwell  and  trade  ye  therein,  and  get  you  possessions  therein." 

The  essence  of  tribal  organization  is  this :  The  institution  of  a 
tribe  is  an  institution  for  the  regulation  of  marriage ;  and  hence 
marriage  is  primitively  by  prescription.  But  the  selection  of 
wives  by  legal  appointment  ultimately  develops  into  selection  by 
personal  choice,  and  tribal  organization  is  greatly  modified  thereby. 

Excursus  —  Laio 

A  definition  of  the  term  "law,"  that  will  hold  good  under  all 
circumstances,  must  be  divested  of  the  many  theories  of  its  origin, 
the  source  of  its  authority,  and  its  ethical  characteristics,  which 
are  expressed  or  implied  in  customary  definitions,  and  laws  must 
be  considered  as  objective  facts.  The  following  definition  will 
perhaps  do  under  all  circumstances :  A  law  is  a  rule  of  conduct 
which  organized  society  endeavors  to  enforce. 

In  civilization,  law  is  theoretically  founded  on  justice ;  but  in 
savagery,  principles  of  justice  have  little  consideration.  There 
are  two  fundamental  principles  at  the  basis  of  primitive  law :  viz. 
first,  controversy  should  be  prevented  ;  second,  controversy  should 
be  terminated.  A  third  is  derivative  from  them ;  namely,  in- 
fraction of  law  should  be  punished.  These  principles  enter  into 
primitive  law  in  many  curious  ways. 

It  was  customary  among  the  tribes  of  North  America  for  in- 
dividuals to  mark  their  arrows,  in  order  that  the  stricken  game 
might  fall  to  the  man  by  whose  arrow  it  had  been  despatched. 

A  war-party  of  Sioux  surprised  a  squad  of  sleeping  soldiers, 
who  were  all  killed  at  the  first  volley  from  the  Indians.  Their 
arms,  blankets,  and  other  property  were  untouched,  because,  the 
attacking  party  being  large,  it  could  not  be  decided  by  whose 
bullets  the  soldiers  were  killed. 

It  has  been  widely  believed  that  the  practice  of  placing  the 


Chap.  XIII,  §  2.]  MARRIAGE  279 

property  of  deceased  persons  in  their  graves  when  they  are  buried 
has  its  origin  in  religion,  and  testifies  to  the  universal  belief  that 
the  dead  live  again,  and  will  need  such  articles  in  their  new  life. 
But  many  tribes  of  North  America  who  have  not  yet  been  long 
in  contact  with  white  men  avow  that,  there  being  no  owner  for 
the  property,  its  disposition  might  lead  to  controversy,  and 
hence  it  is  destroyed.  Many  examples  of  this  fact  have  been 
collected.  Ownership  to  the  greater  part  of  property  in  savagery 
is  communal,  some  classes  of  property  being  owned  by  the  clan, 
others  by  the  tribe ;  and  for  such  there  is  no  proper  inheritance, 
as  the  clan  and  tribe  do  not  die ;  but  purely  personal  property  is 
inherited  by  the  grave.  It  seems  probable  that  such  is  the  origin 
of  the  custom  of  burying  various  articles  with  the  dead.  Subse- 
quently it  has  religious  sanctions  thrown  about  it,  as  have  many 
social  customs. 

There  is  a  law,  among  the  tribes  of  North  America,  that  su- 
perior age  gives  authority.  This  law  is  widely  spread,  and  per- 
haps universal,  and  exercises  a  profound  influence  in  tribal  society, 
as  the  occasions  for  its  applications  are  multifarious.  No  man 
knows  his  own  age ;  but  every  man,  woman,  and  child  in  the 
tribe  knows  his  relative  age  to  every  other  person  in  the  tribe  — 
who  are  older  and  who  are  younger  than  himself  —  for,  in  ad- 
dressing any  other  person  in  the  tribe,  he  must  necessarily  use  a 
term  which  implies  that  the  person  addressed  is  older  or  younger. 
The  law  that  authority  inheres  in  the  elder  is  a  simple  and  in- 
genious method  of  preventing  controversy. 

The  above  is  the  explanation  of  another  custom  observed  among 
savage  tribes ;  namely,  that  it  is  illegal  to  address  a  person  by  his 
proper  name.  Kinship  terms  are  used  in  direct  address,  proper 
names  in  speaking  of  a  third  person.  It  is  hardly  necessary  to 
state  that  by  this  device  controversy  is  prevented. 

An  interesting  form  of  outlawry  exists  among  some  tribes. 
When  a  man  has  frequently  involved  his  clan  in  controversy  with 
other  clans  by  reason  of  quarrels  or  other  outrageous  conduct,  his 
own  may  decide  no  longer  to  defend  him,  and  will  formally  an- 
nounce in  tribal  council  that  such  person  is  no  longer  under  their 
protection.  If  the  person  thereafter  by  his  conduct  maltreats  anj^ 
member  of  the  tribe,  the  injured  party  may  do  as  he  will  with  the 
offender,  and  not  be  held  accountable  by  the  kindred  of  the  outlaw. 

Three  especial  methods  of  terminating  controversy  are  widely 
spread  among  the  tribes  of  North  America. 

When  controversy  arises  in  relation  to  ownership,  the  property 


280  PERSONS  [Part  II. 

is  usually  destroyed  by  the  clan  or  tribal  authorities.  Thus,  if 
two  men  dispute  in  bartering  their  horses,  a  third  steps  in  and 
kills  both  animals.  It  seems  probable  that  the  destruction  of 
property  the  ownership  of  which  is  in  dispute  is  common  to  all 
tribes. 

A  second  method  of  ending  controversy  is  by  the  arbitrament 
of  personal  conflict.  For  example :  if  two  persons  disagree  and 
come  to  blows  (unless  the  conflict  end  in  the  maiming  or  killing 
of  one  of  the  parties),  it  is  considered  a  final  settlement,  and  they 
cannot  thereafter  appeal  to  their  clans  for  justice.  By  conflict  a 
controversy  is  barred.     This  law  seems  to  be  universal. 

The  third  method  of  terminating  controversy  is  by  the  establish- 
ment of  some  day  of  festival  —  sometimes  once  a  month,  but 
usually  once  a  year  —  beyond  which  crimes  do  not  pass.  The 
day  of  jubilee  is  a  day  of  forgiveness.  The  working  of  this  prin- 
ciple might  be  illustrated  in  many  ways. 

Law  begins  in  savagery  through  the  endeavor  to  secure  peace, 
and  develops  in  the  highest  civilization  into  the  endeavor  to  estab- 
lish justice. 

Society  is  organized  for  the  regulation  of  conduct,  and  con- 
duct is  regulated  by  law  in  the  several  stages  of  human  progress 
in  relation  to  those  particulars  about  wdiich  serious  disagreement 
arises.  In  the  early  history  of  mankind  it  appears,  from  all  that 
we  may  now  know  of  the  matter,  that  the  most  serious  and  fre- 
quent disagreements  arose  out  of  the  relations  of  the  sexes.  Men 
disagreed  about  women,  and  women  about  men.  Early  law, 
therefore,  deals  to  a  large  extent  with  the  relations  of  the  sexes. 
The  savage  legislator  sought  to  avoid  controversy  by  regulating 
marital  relations;  and  this  he  did  by  denying  to  the  individual 
the  right  of  choice,  and  providing  that  certain  groups  of  men 
should  take  their  wives  from  certain  groups  of  women,  and, 
further,  that  the  selection  of  the  woman  should  not  be  given  to 
the  man,  nor  the  selection  of  the  man  to  the  woman,  but  that 
certain  officers  or  elder  persons  should  make  the  marriage  contract. 
This  method  of  selection  is  here  called  legal  appointment. 

Now,  selection  by  legal  appointment  exists  among  all  North 
American  tribes,  and  elsewhere  among  savages  in  Australia  and 
other  portions  of  the  globe ;  it  exists  in  diverse  forms,  which  may 
not  here  be  recounted  for  want  of  space.  But  the  essential  prin- 
ciple is  this :  in  order  that  controversy  may  be  avoided,  marriage 
selection  is  by  legal  appointment,  and  not  by  personal  choice. 


Chap.  XIII,  §  2.]  MARRIAGE  281 

But  the  second  fundamental  principle  of  primitive  law  greatly 
modifies  selection  by  legal  appointment,  and  gives  rise  to  three 
forms  of  marriage,  which  will  be  denominated  as  follows :  first, 
marriage  by  elopement;  second;  marriage  by  capture;  third, 
marriage  by  duel. 

It  very  often  happens  in  the  history  of  tribes  that  certain  of 
the  kinship  groups  diminish  in  number,  while  others  increase.  A 
group  of  men  may  greatly  increase  in  number,  while  the  group  of 
women  from  whom  they  are  obliged  to  accept  their  wives  diminishes. 
At  the  same  time  another  group  of  women  may  be  large  in  pro- 
portion to  the  group  of  men  to  whom  they  are  destined.  Under 
these  circumstances,  certain  men  have  a  right  to  many  wives, 
while  others  have  a  right  to  but  few.  It  is  verj^  natural  that 
young  men  and  young  women  should  sometimes  rebel  against  the 
law,  and  elope  with  each  other.  Now,  a  fundamental  principle 
of  early  law  is  that  controversy  must  end ;  and  such  termination 
is  secured  by  a  curious  provision  found  among  many,  perhaps  all, 
tribes.  A  day  is  established,  sometimes  once  a  moon,  but  usually 
once  a  year,  at  which  certain  classes  of  offenses  are  forgiven.  If, 
then,  a  runaway  couple  can  escape  to  the  forest,  and  live  by 
themselves  till  the  day  of  forgiveness,  they  may  return  to  the 
tribe  and  live  in  peace.  Marriage  by  this  form  exists  in  many  of 
the  tribes  of  North  America. 

Again,  the  group  of  men  whose  marriage  rights  are  curtailed 
by  diminution  of  the  stock  into  which  they  may  marry,  sometimes 
united  to  capture  a  wife  for  one  of  their  number  from  some  other 
group.  It  must  be  distinctly  understood  that  this  capture  is  not 
from  an  alien  tribe,  but  always  from  a  group  within  the  same 
tribe.  The  attempt  at  capture  is  resisted,  and  a  conflict  ensues. 
If  the  capture  is  successful,  the  marriage  is  thereafter  considered 
legal ;  if  unsuccessful,  a  second  resort  to  capture  in  the  particular 
case  is  not  permitted,  for  controversy  must  end.  ^\lien  women 
are  taken  in  war  from  alien  tribes  they  must  be  adopted  into  some 
clan  within  the  capturing  tribe,  in  order  that  they  may  become 
wives  of  the  men  of  the  tribe.  When  this  is  done,  the  captured 
women  become  by  legal  appointment  the  wives  of  men  in  the  group 
having  marital  rights  in  the  clan  which  has  adopted  them. 

The  third  form  is  marriage  by  duel.  ^\Tien  a  young  woman 
comes  to  marriageable  age,  it  may  happen  that  by  legal  appoint- 
ment she  is  assigned  to  a  man  who  already  has  a  wife,  while 
there  may  be  some  other  young  man  in  the  tribe  who  is  without 
a  wife,  because  there  is  none  for  him  in  the  group  within  which 


282  PERSONS  [Part  II. 

he  may  marry.  It  is  then  the  right  of  the  latter  to  challenge  to 
combat  the  man  who  is  entitled  to  more  than  one,  and,  if  success- 
ful, he  wins  the  woman  ;  and  by  savage  law  controversy  must  then 
end. 

All  three  of  these  forms  are  observed  among  the  tribes  of  North 
America ;  and  they  are  methods  by  w  hich  selection  by  legal  ap- 
pointment is  developed  into  selection  by  personal  choice.  Some- 
times these  latter  forms  largely  prevail ;  and  they  come  to  be  regu- 
lated more  and  more,  until  at  last  they  become  mere  forms,  and 
personal  choice  prevails. 

When  personal  choice  thus  prevails,  the  old  regulation  that  a 
man  may  not  marry  within  his  own  group  still  exists ;  and  selec- 
tion within  that  group  is  incest,  which  is  always  punished  with 
great  severity.  The  group  of  persons  within  which  marriage  is 
incest  is  always  a  highly  artificial  group ;  hence,  in  early  society, 
incest  laws  do  not  recognize  physiologic  conditions,  but  only  social 
conditions. 

The  above  outline  will  make  clear  the  following  statement, 
that  endogamy  and  exogamy,  as  originally  defined  by  McLennan, 
do  not  exist.  Every  savage  man  is  exogamous  with  relation  to 
the  class  or  clan  to  which  he  may  belong,  and  he  is  to  a  certain 
extent  endogamous  in  relation  to  the  tribe  to  which  he  belongs, 
that  is,  he  marries  within  that  tribe ;  but  in  all  cases,  if  his  mar- 
riage is  the  result  of  legal  appointment,  he  is  greatly  restricted  in 
his  marriage  rights,  and  the  selection  must  be  made  within  some 
limited  group.  Exogamy  and  endogamy,  as  thus  defined,  are 
integral  parts  of  the  same  law,  and  the  tribes  of  mankind  cannot 
be  classed  in  two  great  groups,  one  practicing  endogamy,  and  the 
other  exogamy. 

The  law  of  exogamy  is  universal.  Among  all  peoples  there  is 
a  group,  larger  or  smaller,  and  natural  or  artificial,  within  which 
marriage  is  prohibited.  Exogamy  is  a  derivative  institution ;  its 
antecedent  is  marriage  by  legal  appointment  within  a  prescribed 
group.  Marriage  by  prescription  falls,  but  marriage  within  the 
enatic  or  agnatic  group  is  still  considered  incest.  Until,  therefore, 
the  right  of  marriage  extends  to  all  clans  but  that  of  the  individual 
himself,  exogamy  is  not  fully  established. 

This  may  be  restated :  The  primitive  institution  is  marriage 
by  prescription ;  this  develops  into  marriage  by  personal  choice. 
But  there  remains  as  a  survival  from  the  primitive  institution  a 
prohibition  which  may  be  called  exogamy,  the  violation  of  which 
is  a  crime  called  incest. 


Chap.  XIII,  §  3.]  MARRIAGE  283 

Tribal  society  is  of  great  antiquity ;  and  in  the  vicissitudes  of 
tribal  life  kinship  society  has  undergone  many  changes,  though 
these  changes  are  restricted  to  narrow  limits.  Yet,  within  these 
limits  the  changes  are  very  many,  and  the  subject  is  thereby 
greatly  complicated,  and  cannot  be  understood  without  long  and 
careful  research.  Passing  travelers  can  no  more  set  forth  the 
institutions  of  tribal  society  than  they  can  give  a  proper  descrip- 
tion of  the  flora  of  a  country,  the  fauna  of  a  region,  or  the  geologic 
structure  of  a  continent. 

Section  3 
RELIGIOUS   BASIS   OF   THE   FAMILY » 

If  we  transport  ourselves  in  thought  to  those  ancient  generations 
of  men,  we  find  in  each  house  an  altar,  and  around  this  altar  the 
family  assembled.  The  family  meets  every  morning  to  address  its 
first  prayers  to  the  sacred  fire,  and  in  the  evening  to  invoke  it  for  a 
last  time.  In  the  course  of  the  day  the  members  are  once  more 
assembled  near  the  fire  for  the  meal,  of  which  they  partake  piously 
after  prayer  and  libation.  In  all  these  religious  acts,  hymns,  which 
their  fathers  have  handed  down,  are  sung  in  common  by  the  famih-. 

Outside  the  house,  near  at  hand,  in  a  neighboring  field,  there  is 
a  tomb  —  the  second  home  of  this  family.  There  several  genera- 
tions of  ancestors  repose  together;  death  has  not  separated  them. 
They  remain  grouped  in  this  second  existence,  and  continue  to 
form  an  indissoluble  family.^ 

'[By  FusTEL  DE  CouLANGEs,  "The  Ancient  City";  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

'  The  use  of  family  tombs  by  the  ancients  is  incontestable ;  it  disap- 
peared only  when  the  beliefs  relative  to  the  worship  of  the  dead  became 
obscured.  The  words  T6.<t>os  Trarcpifios,  Td(pos  tQv  irpoy6vcov,  appear  contin- 
ually in  Greek  writers,  as  "tumulus  patrius "  or  avitus,  "  sepulerum 
gentis,"  are  found  in  Roman  writers.  See  Demosthenes,  "in  Eubul.,"  28; 
"in  Macart.,"  79.  Lycurgus,  "in  Leocr.,"  25.  Cicero,  "De  Offic," 
I.  17.  "  De  Legib.,"  II.  22  —  "  Mortuum  extra  gentem  inferri  fas  negant  " 
Ovid,  "Trist.,"  IV.  3,  4.5.  Velleius,  II.  119.  Suetonius,  "Nero,"  50; 
"Tiberius,"  1.  "Digest,"  XI.  5;  XVIII.  1,  6.  There  is  an  old  anec- 
dote that  shows  how  necessary  it  was  thought  to  be  that  every  one  should 
be  buried  in  the  tomb  of  his  family.  It  is  related  that  the  Lacedaemo- 
nians, when  about  to  join  battle  with  the  Messenians,  attached  to  their 
right  arms  their  name,  and  those  of  their  fathers,  in  order  that,  in  case 
of  death,  each  body  might  be  recognized  on  the  field  of  1>attle,  and  trans- 
ported to  the  paternal  tomb.  Justin,  III.  5.  See  Mschylus,  "Sept.," 
889  (914),  rdipwv  iraTpi(^v  \dxai-  The  Greek  orators  frequently  refer 
to  this  custom :  Isi3eus,  Lysias,  or  Demosthenes,  when  he  wishes  to 
prove  that  such  a  man  belongs  to  a  certain  family,  and  has  the  right  to 
inherit  its  property,  rarely  fails  to  say  that  this  man's  father  is  buried 
in  the  tomb  of  this  family. 


284  PERSONS  [Part  II. 

Between  the  living  part  and  the  dead  part  of  the  family  there  is 
only  this  distance  of  a  few  steps  which  separates  the  house  from  the 
tomb.  On  certain  days,  which  are  determined  for  each  one  by  his 
domestic  religion,  the  living  assemble  near  their  ancestors ;  they 
offer  them  the  funeral  meal, pour  out  milk  and  wine  to  them,  layout 
cakes  and  fruits,  or  burn  the  flesh  of  a  victim  to  them.  In  exchange 
for  these  offerings  they  ask  protection ;  they  call  these  ancestors 
their  gods,  and  ask  them  to  render  the  fields  fertile,  the  house 
prosperous,  and  their  hearts  virtuous. 

Generation  alone  was  not  the  foundation  of  the  ancient  family. 
What  proves  this  is,  that  the  sister  did  not  bear  the  same  relation 
to  the  family  as  the  brother;  that  the  emancipated  son  and  the 
married  daughter  ceased  completely  to  form  a  part  of  the  family ; 
and,  in  fine,  several  other  important  provisions  of  the  Greek  and 
Roman  laws,  that  we  shall  have  occasion  to  examine  farther  along. , 

Nor  is  the  family  principle  natural  affection.  For  Greek  and 
Roman  law  makes  no  account  of  this  sentiment.  The  sentiment 
may  exist  in  the  heart,  but  it  is  not  in  the  law.  The  father  may 
have  affection  for  his  daughter,  but  he  cannot  will  her  his  property. 
The  laws  of  succession  —  that  is  to  say,  those  laws  which  most 
faithfully  reflect  the  ideas  that  men  had  of  the  family  —  are  in 
open  contradiction  both  with  the  order  of  birth  and  with  natural 
affection.^ 

The  historians  of  Roman  laws,  having  very  justly  remarked  that 
neither  birth  nor  affection  was  the  foundation  of  the  Roman  family, 
have  concluded  that  this  foundation  must  be  found  in  the  power 
of  the  father  or  husband.  They  make  a  sort  of  primordial  insti- 
tution of  this  power ;  but  they  do  not  explain  how  this  power  was 
established,  unless  it  was  by  the  superiority  of  strength  of  the 
husband  over  the  wife,  and  of  the  father  over  the  children.  Now, 
we  deceive  ourselves  sadly  when  we  thus  place  force  as  the  origin 
of  law.  We  shall  see  farther  on  that  the  authority  of  the  father 
or  husband,  far  from  having  been  a  first  cause,  was  itself  an  effect ; 
it  was  derived  from  religion,  and  was  established  by  religion.  Su- 
perior strength,  therefore,  was  not  the  principle  that  established  the 
family. 

The  members  of  the  ancient  family  were  united  by  something 
more  powerful  than  birth,  affection,  or  physical  strength  ;  this  was 
the  religion  of  the  sacred  fire,  and  of  dead  ancestors.  This  caused 
the  family  to  form  a  single  body,  both  in  this  life  and  in  the  next. 

^  It  must  be  understood  that  we  here  speak  of  the  most  ancient  law. 
We  shall  soon  see  that,  at  a  later  date,  these  early  laws  were  modified. 


Chap.  XIII,  §  4.]  MARRIAGE  285 

The  ancient  family  was  a  religious  rather  than  a  natural  associa- 
tion ;  and  we  shall  see  presently  that  the  wife  was  counted  in  the 
family  only  after  the  sacred  ceremony  of  marriage  had  initiated 
her  into  the  worship  ;  that  the  son  was  no  longer  counted  in  it  when 
he  had  renounced  the  worship,  or  had  been  emancipated ;  that, 
on  the  otlier  hand,  an  adopted  son  was  counted  a  real  son,  because, 
though  he  had  not  the  ties  of  blood,  he  had  something  better  — 
a  community  of  worship ;  that  the  heir  who  refused  to  adopt  the 
worship  of  this  family  had  no  right  to  the  succession ;  and,  finally, 
that  relationship  and  the  right  of  inheritance  were  governed  not 
by  birth,  but  by  the  rights  of  participation  in  the  worship,  such  as 
Religion  had  established  them.  Religion,  it  is  true,  did  not  create 
the  family ;  but  certainly  it  gave  the  family  its  rules  ;  and  hence 
it  comes  that  the  constitution  of  the  ancient  family  was  so  different 
from  what  it  would  have  been  if  it  had  owed  its  foundation  to 
natural  affection. 

The  ancient  Greek  language  has  a  very  significant  word  to  desig- 
nate a  family.  It  is  eiria-rLov,  a  word  which  signifies,  literally,  that 
which  is  near  a  hearth.  A  family  was  a  group  of  persons  whom 
religion  permitted  to  invoke  the  same  sacred  fire,  and  to  offer  the 
funeral  repast  to  the  same  ancestors. 

Section  4 
MARRIAGE   IN   GREECE   AND    ROME  ^ 

The  first  institution  that  the  domestic  religion  established,  prob- 
ably, was  marriage. 

We  must  remark  that  this  worship  of  the  sacred  fire  and  of 
ancestors,  which  was  transmitted  from  male  to  male,  did  not  be- 
long, after  all,  exclusively  to  man  ;  woman  had  a  part  in  it.  As  a 
daughter,  she  took  part  in  the  religious  acts  of  her  father;  as  a 
wife,  in  those  of  her  husband. 

From  this  alone  we  see  the  essential  character  of  the  conjugal 
union  among  the  ancients.  Two  families  live  side  by  side ;  but 
they  have  different  gods.  In  one,  a  young  daughter  takes  a  part, 
from  her  infancy,  in  the  religion  of  her  father ;  she  invokes  his 
sacred  fire;  every  day  she  offers  it  libations.  She  surrounds  it 
with  flowers  and  garlands  on  festal  days.  She  asks  it  protection, 
and  returns  thanks  for  its  favors.     This  paternal  fire  is  her  god. 

'  [By  FusTEL  DE  CouLANGES,  "  The  Ancient  City " ;  translated  bj- 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 


286  PERSONS  [Part  II. 

Let  a  young  man  of  the  neighboring  family  ask  her  In  marriage, 
and  something  more  is  at  stake  than  to  pass  from  one  house  to  the 
other.  She  must  abandon  the  paternal  fire,  and  henceforth  invoke 
that  of  the  husband.  She  must  abandon  her  religion,  practise 
other  rites,  and  pronounce  other  prayers.  She  must  give  up  the 
god  of  her  infancy,  and  put  herself  under  the  protection  of  a  god 
whom  she  knows  not.  Let  her  not  hope  to  remain  faithful  to  the 
one  while  honoring  the  other ;  for  in  this  religion  it  is  an  immutable 
principle  that  the  same  person  cannot  invoke  two  sacred  fires  or 
two  series  of  ancestors.  "From  the  hour  of  marriage,"  says  one 
of  the  ancients,  "the  wife  has  no  longer  anything  in  common  with 
the  domestic  religion  of  her  fathers ;  she  sacrifices  at  the  hearth  of 
her  husband."  ^ 

Marriage  is,  therefore,  a  grave  step  for  the  young  girl,  and  not 
less  grave  for  the  husband  ;  for  this  religion  requires  that  one  shall 
have  been  born  near  the  sacred  fire,  in  order  to  have  the  right  to 
sacrifice  to  it.  And  yet  he  is  now  about  to  bring  a  stranger  to  this 
hearth ;  with  her  he  will  perform  the  mysterious  ceremonies  of  his 
worship  ;  he  will  reveal  the  rites  and  formulas  which  are  the  patri- 
mony of  his  family.  There  is  nothing  more  precious  than  this 
heritage ;  these  gods,  these  rites,  these  hymns  which  he  has  re- 
ceived from  his  fathers,  are  what  protect  him  in  this  life,  and 
promise  him  riches,  happiness,  and  virtue.  And  yet,  instead  of 
keeping  to  himself  his  tutelary  power,  as  the  savage  keeps  his  idol 
or  his  amulet,  he  is  going  to  admit  a  woman  to  share  it  with  him. 

Thus,  when  we  penetrate  the  thoughts  of  these  ancient  men, 
we  see  of  how  great  importance  to  them  was  the  conjugal  union, 
and  how  necessary  to  it  was  the  intervention  of  religion.  Was  it 
not  quite  necessary  that  the  young  girl  should  be  initiated  into  the 
religion  that  she  was  henceforth  to  follow  by  some  sacred  cere- 
mony ?  Was  not  a  sort  of  ordination  or  adoption  necessary  for  her 
to  become  a  priestess  of  this  sacred  fire,  to  which  she  was  not  at- 
tached by  birth  ? 

Marriage  was  this  sacred  ceremony,  which  was  to  produce  these 
important  effects.  The  Greek  and  Roman  writers  habitually 
designatemarriageby  a  word  indicative  of  a  religious  act.^  Pollux, 
who  lived  in  the  time  of  the  Antonines,  but  who  was  well  instructed 
in  the  ancient  usages  of  his  language,  says,  that  in  ancient  times, 
instead  of  designating  marriage  by  its  particular  name,  <yd/j,o<;,  they 
designated  it  simply  by  the  word  reXo?,  which  signifies  sacred  cere- 

^  Stephen  of  Byzantium,  Trdrpa. 
2  Qijeiv  ydfiov,  sacrum  nuptiale. 


Chap.  XIII.  §  4.]  MARRIAGE  287 

mony/  as  if  marriage  had  been,  in  those  ancient  times,  the  cere- 
mony sacred  above  all  others. 

Now,  the  religion  that  created  marriage  was  not  that  of  Jupiter, 
of  Juno,  or  of  the  other  gods  of  Olympus.  The  ceremony  did  not 
take  place  in  a  temple ;  it  was  performed  in  a  house,  and  the  domes- 
tic god  presided.  When  the  religion  of  the  gods  of  the  sky  became 
preponderant,  men  could  not  help  invoking  them  also  in  the  prayers 
of  marriage,  it  is  true ;  it  even  became  habitual  to  go  to  the  temple 
before  the  marriage,  and  offer  sacrifices  to  these  gods.  These 
sacrifices  were  called  the  preludes  of  marriage ;  -  but  the  principal 
and  essential  part  of  the  ceremony  always  took  place  before  the 
domestic  hearth. 

Among  the  Greeks  the  marriage  ceremony  consisted,  so  to  speak, 
of  three  acts.  The  first  took  place  before  the  hearth  of  the  father, 
ij'yv7](n^  ;  the  third  before  the  hearth  of  the  husband,  re\o<i ;  the 
second  was  the  passage  from  the  one  to  the  other,  Trofj-ir^.^ 

1.  In  the  paternal  dwelling,  in  the  presence  of  the  future  bride- 
groom, the  father,  surrounded  ordinarily  by  his  family,  offers  a 
sacrifice.  The  sacrifice  concluded,  he  declares  —  pronouncing  a 
sacramental  formula  —  that  he  gives  his  daughter  to  the  young 
man.  This  declaration  is  absolutely  indispensable  to  the  mar- 
riage ;  for  the  young  girl  would  not  be  able  to  go  at  once  to  wor- 
ship at  the  hearth  of  her  husband,  if  her  father  had  not  already 
separated  her  from  the  paternal  hearth.  To  enable  her  to  adopt 
her  new  religion,  she  must  be  freed  from  every  bond  that  attaches 
her  to  her  first  religion. 

2.  The  young  girl  is  carried  to  the  house  of  the  husband.  Some- 
times the  husband  himself  conducts  her.  In  certain  cities  the  duty 
of  bringing  her  belongs  to  one  of  those  men  who,  among  the 
Greeks,  were  clothed  with  a  sacerdotal  character,  and  who  were 
called  heralds.  The  bride  was  usually  placed  upon  a  car ;  her 
face  was  covered  with  a  veil,  and  on  her  head  was  a  crown.  The 
crown,  as  we  shall  often  have  occasion  to  see,  was  used  in  all  the 
ceremonies  of  this  worship.  She  was  dressed  in  white.  White 
was  the  color  of  the  vestments  in  all  the  religious  acts.  She  was 
preceded  by  a  torch  —  the  nuptial  torch.     For  the  whole  distance 

1  Pollux,  III.  3,  38. 

-  UpoT^Xeia,  Trpoydfxia,  Pollux,  III.  38. 

^Horner,  "II.,"  XVIII.  391.  Hesiod,  ^'Scutum,"  v.  275.  Herodotus, 
VI.  129,  130.  Plutarch,  "Theseus,"  10;  "Lycurg.,"  passim;  "Solon," 
20;  '''Aristides,"  20;  "Gr.  Quest.,"  27.  Demosthenes,  "in  Stephanum," 
II.  Isaus,  III.  39.  Euripides,  "Helena,"  722-725;  "Phen.,"  345. 
Harpocration,  v.  Tafxriyia.  Pollux,  III,  e.  3.  The  same  usage  among 
the  Macedonians.     Quintus  Curtius,  VIII.  16. 


288  PERSONS  [Part  II. 

they  sang  around  her  religious  hymns,  whose  refrain  was  <w  ^J^^, 
<b  vfievaie.  This  hymn  they  called  the  hymeneal,  and  the  impor- 
tance of  this  sacred  chant  was  so  great  that  they  gave  its  name  to 
the  whole  ceremony. 

The  bride  dares  not  go  of  her  own  accord  into  her  new  dwelling. 
Her  husband  must  take  her,  and  simulate  a  seizure  by  force.  She 
must  cry  out,  and  the  women  that  accompany  her  must  pretend  to 
defend  her.  Why  this  rite?  Is  it  a  symbol  of  the  modesty  of 
the  bride  ?  This  is  hardly  probable :  the  moment  for  shame  has 
not  yet  come  ;  for  what  is  now  to  take  place  is  a  religious  ceremony. 
Was  it  not  to  mark  more  strongly  that  the  wife,  who  was  now  to 
sacrifice  to  this  fire,  had  herself  no  right  there,  that  she  did  not 
approach  it  of  her  own  free  will,  and  that  the  master  of  the  place 
and  of  the  god  introduced  her  by  an  act  of  his  power  ?  However 
this  ma}'  be,  after  a  feigned  struggle,  the  husband  raises  her  in  his 
arms,  and  carries  her  through  the  doorway,  taking  great  care, 
however,  that  her  feet  do  not  touch  the  sill. 

What  precedes  is  only  a  preparation,  a  prelude  to  the  ceremony. 
The  sacred  act  now  commences  in  the  house. 

3.  They  approach  the  hearth  ;  the  wife  is  brought  into  the  pres- 
ence of  the  domestic  divinity.  She  is  sprinkled  with  the  lustra! 
water.  She  touches  the  sacred  fire.  Prayers  are  repeated.  Fi- 
nally, the  husband  and  wife  share  between  themselves  a  cake  or  a 
loaf. 

This  sort  of  light  meal,  which  commences  and  ends  with  a  liba- 
tion and  a  prayer,  this  sharing  of  nourishment  in  presence  of  the 
fire,  puts  the  husband  and  wife  in  religious  communion  with  each 
other,  and  in  communion  with  the  domestic  gods. 

The  Roman  marriage  closely  resembled  that  of  Greece,  and,  like 
it,  comprised  three  acts  —  traditio,  deductio  in  domnm,  confarreatio} 

1.  The  young  girl  quits  the  paternal  hearth.  As  she  is  not  at- 
tached to  this  hearth  by  her  own  right,  but  through  the  father  of 
the  family,  the  authority  of  the  father  only  can  detach  her  from  it. 
The  tradition  is,  therefore,  an  indispensable  ceremony. 

2.  The  young  girl  is  conducted  to  the  house  of  the  husband. 

1  Varro,  "L.  L.,"  61.  Dionysius  of  Haliearnassus,  II.  25,  26.  Ovid, 
"Fast.,"  II.  558.  Plutarch,  "Rom.  Quest.,"  I.  29;  "Romul.,"  15. 
Plin.,  ''N.  H.,"  XVIII.  3.  Tacit.  "Ann.,"  IV.  16;  XI.  27.  Juvenal, 
"Sat."  X.  329-336.  Gains,  "Inst.,"  I.  112.  Ulpian,  IX.  "Digest," 
XXIII.  2,  1.  Fes^^/s,  "  V.  Rapi."  Macrobius,  " Sat.,"  1.  15.  Servius, ''ad 
^n.,"  IV.  168.  The  same  custom  among  the  Etruscans,  Varro,  "De  Re 
Rust.,"  II.  4.  The  same  custom  among  the  ancient  Hindus,  "Laws  of 
Manu,"  III.  27-30,  172;  V.  152;  VIII.  227;  IX.  194.  "Mitakchara," 
Orianne's  trans.,  pp.  166,  167,  236. 


Chap.  XIII,  §  4.]  MARRIAGE  2S9 

As  in  Greece,  she  is  veiled.  She  \years  a  crown,  and  a  nuptial 
torch  precedes  the  cortege.  Those  about  her  sing  an  ancient  re- 
ligious hymn.  The  words  of  this  hymn  changed  doubtless  with 
time,  accommodating  themselves  to  the  variations  of  belief,  or  to 
those  of  the  language  ;  but  the  sacramental  refrain  continued  from 
age  to  age  without  change.  It  was  the  word  Talassie,  a  word  whose 
sense  the  Romans  of  Horace's  time  no  more  understood  than  the 
Greeks  understood  the  word  vfievaie,  and  which  was,  probably, 
the  sacred  and  inviolable  remains  of  an  ancient  formula. 

The  cortege  stops  before  the  house  of  the  husband.  There  the 
bride  is  presented  with  fire  and  water.  The  fire  is  the  emblem  of 
the  domestic  divinity ;  the  water  is  the  lustral  water,  that  serves 
the  family  for  all  religious  acts.  To  introduce  the  bride  into  the 
house,  violence  must  be  pretended,  as  in  Greece.  The  husband 
must  take  her  in  his  arms,  and  carry  her  over  the  sill,  without  al- 
lowing her  feet  to  touch  it. 

3.  The  bride  is  then  led  before  the  hearth,  where  the  Penates, 
and  all  the  domestic  gods,  and  the  images  of  ancestors,  are  grouped 
around  the  sacred  fire.  As  in  Greece,  the  husband  and  wife  offer 
a  sacrifice,  pouring  out  a  libation,  pronouncing  prayers,  and  eating 
a  cake  of  wheaten  flour  (panis  farreus) .^ 

This  cake,  eaten  during  the  recitation  of  prayers,  in  the  presence 
and  under  the  very  eyes  of  the  domestic  divinities,  makes  the 
union  of  the  husband  and  wife  sacred.  Henceforth  they  are  as- 
sociated in  the  same  worship.  The  wife  has  the  same  gods,  the 
same  rites,  the  same  prayers,  the  same  festivals  as  her  husband. 
Hence  this  old  definition  of  marriage,  which  the  jurists  have  pre- 
served to  us:  NiiiMce  sunt  divini  juris  et  humani  commimicatio; 
and  this  other:  Uxor  socio  humance  rei  atque  divinicp?  This  is 
because  the  wife  participates  in  the  worship  of  the  husband ;  this 
"W'ife  whom,  according  to  the  expression  of  Plato,  the  gods  them- 
selves have  introduced  into  the  house. 

The  wife,  thus  married,  also  worships  the  dead  ;  but  it  is  not  to 
her  own  ancestors  that  she  carries  the  funeral  repast.  She  no 
longer  has  this  right.  ^Marriage  has  completely  detached  her  from 
the  family,  and  has  interrupted  all  the  religious  relations  that  she 
had  with  it.     Her  offerings  she  carries  to  the  ancestors  of  her  hus- 

'  We  shall  speak  presently  of  other  forms  of  marriage  in  use  among  the 
Romans,  in  which  religion  liad  no  part.  Let  it  suffice  to  say  here,  that 
the  sacred  marriage  appears  to  us  to  be  the  oldest ;  for  it  corresponds  to 
the  most  ancient  beliefs,  and  disappeared  only  as  those  beliefs  died  out. 

2  "Digest,"  XXIII.  title  2.  "Code,"  IX.  32,4.  Diomjsius  oiHaW- 
carnassus,  II.  25  :  Koivuvos  x/"?MCtT-owc  nal  lepQv.  Stephen  of  Byzantium, 
irdrpa. 


290  PERSONS  [Part  II. 

band ;  she  is  of  their  family ;  they  have  become  her  ancestors. 
]\Iarriage  has  been  for  her  a  second  birth ;  she  is  henceforth  the 
danghter  of  her  husband;  fdioe  loco,  say  the  jurists.  One  could 
not  belong  to  two  families,  or  to  two  domestic  religions ;  the  wife 
belongs  entirely  to  her  husband's  family,  and  to  his  religion.  We 
shall  see  the  consequences  of  this  rule  in  the  right  of  succession. 

The  institution  pf-Sacred  marriage  must  be  as  old  in  the  Indo- 
European  race  as  the  domestic  religion ;  for  the  one  could  not  exist 
without  the  other.  This  religion  taught  man  that  the  conjugal 
union  was  something  more  than  a  relation  of  the  sexes,  and  a  fleet- 
ing affection,  and  united  man  and  wife  by  the  powerful  bond  of 
the  same  worship  and  the  same  belief.  The  marriage  ceremony, 
too,  was  so  solemn,  and  produced  effects  so  grave,  that  it  is  not 
surprising  that  these  men  did  not  think  it  permitted  or  possible  to 
have  more  than  one  wife  in  each  house.  Such  a  religion  could  not 
admit  of  polygamy. 

We  can  understand,  too,  that  such  a  marriage  was  indissoluble, 
and  that  divorce  was  almost  impossible.  The  Roman  law  did 
indeed  permit  the  dissolution  of  the  marriage  by  coemptio,  or  by 
usus.  But  the  dissolution  of  the  religious  marriage  was  very  diffi- 
cult. For  that,  a  new  sacred  ceremony  was  necessary,  as  religion 
alone  could  separate  what  religion  had  united.  The  effect  of  the 
confarreatio  could  be  destroyed  only  by  the  diffarreatio.  The  hus- 
band and  wife  who  wished  to  separate  appeared  for  the  last  time 
before  the  common  hearth ;  a  priest  and  witnesses  were  present. 
As  on  the  day  of  marriage,  a  cake  of  wheaten  flour  was  presented 
to  the  husband  and  wife.^  But,  instead  of  sharing  it  between  them, 
they  rejected  it.  Then,  instead  of  prayers,  they  pronounced  for- 
mulas of  a  strange,  severe,  spiteful,  frightful  character,-  a  sort  of 
malediction,  by  which  the  wife  renounced  the  worship  and  gods  of 
the  husband.  From  that  moment  the  religious  bond  was  broken. 
The  community  of  worship  having  ceased,  every  other  ccmmon 
interest  ceased  to  exist,  and  the  marriage  was  dissolved. 

^  Festus,  V.  "Diffarreatio."  Pollux,  III.  c.  3:  d7ro7ro/x7r^.  We  read, 
in  an  inscription,  Sacerdos  confarreationum  et  diffarreationum.  Orelliy 
No.  2648. 

2  <i>pi/cw577,  aW6K0Ta,  ffKv6p(Inra,  Plutarch,  .'''Rom.  Quest."  50. 


Chapter  XIV 
PATRIA  POTESTAS^ 


Ox  a  few  systems  of  law  the  family  organisation  of  the  earliest 
society  has  left  a  plain  and  broad  mark  in  the  life-long  authority 
of  the  Father  or  other  ancestor  over  the  person  and  property  of 
his  descendants,  an  authority  which  we  may  conveniently  call  by 
its  later  Roman  name  of  Patria  Potestas.  Xo  feature  of  the  rudi- 
mentary associations  of  mankind  is  deposed  to  by  a  greater  amount 
of  evidence  than  this,  and  yet  none  seems  to  have  disappeared  so 
generally  and  so  rapidly  from  the  usages  of  advancing  communi- 
ties. Gains,  writing  under  the  Antonines,  describes  the  institu- 
tion as  distinctively  Roman.  It  is  true  that,  had  he  glanced  across 
the  Rhine  or  the  Danube  to  those  tribes  of  barbarians  which  were 
exciting  the  curiosity  of  some  among  his  contemporaries,  he 
would  have  seen  examples  of  patriarchal  power  in  its  crudest  form  ; 
and  in  the  far  East  a  branch  of  the  same  ethnical  stock  from  which 
the  Romans  sprang  was  repeating  their  Patria  Potestas  in  some  of 
its  most  technical  incidents.  But  among  the  races  understood 
to  be  comprised  within  the  Roman  Empire,  Gains  could  find  none 
which  exhibited  an  institution  resembling  the  Roman  "Power  of 
the  Father,"  except  only  the  Asiatic  Galatse.  There  are  reasons, 
indeed,  as  it  seems  to  me,  why  the  direct  authority  of  the  ancestor 
should,  in  the  greater  number  of  progressive  societies,  very  shortly 
assume  humbler  proportions  than  belonged  to  it  in  their  earliest 
state.  The  implicit  obedience  of  rude  men  to  their  parent  is  doubt- 
less a  primary  fact,  which  it  would  be  absurd  to  explain  away 
altogether  by  attributing  to  them  any  calculation  of  its  advantages ; 
but,  at  the  same  time,  if  it  is  natural  in  the  sons  to  obey  the  father, 
it  is  equally  natural  that  they  should  look  to  him  for  superior 
strength  or  superior  wisdom.  Hence,  when  societies  are  placed 
under  circumstances  which  cause  an  especial  value  to  be  attached 

*  [By  Sir  Henry  S.  Maine.  Reprinted  from  "Ancient  Law,"  by  per- 
mission of  Henry  Holt  and  Company,  New  York.] 

291 


292  PERSONS  [Part  II. 

to  bodily  and  mental  vigour,  there  is  an  influence  at  work  which 
tends  to  confine  the  Patria  Potestas  to  the  cases  where  its  posses- 
sor is  actually  skilful  and  strong.  When  we  obtain  our  first  glimpse 
of  organised  Hellenic  society,  it  seems  as  if  supereminent  wisdom 
would  keep  alive  the  father's  power  in  persons  whose  bodily 
strength  had  decayed ;  but  the  relations  of  Ulysses  and  Laertes 
in  the  "  Odyssey  "  appear  to  show  that,  where  extraordinary  valour 
and  sagacity  were  united  in  the  son,  the  father  in  the  decrepitude 
of  age  was  deposed  from  the  headship  of  the  family.  In  the 
mature  Greek  jurisprudence,  the  rule  advances  a  few  steps  on  the 
practice  hinted  at  in  the  Homeric  literature ;  and  though  very 
many  traces  of  stringent  family  obligation  remain,  the  direct 
authority  of  the  parent  is  limited,  as  in  European  codes,  to  the 
nonage  or  minority  of  the  children,  or,  in  other  words,  to  the  period 
during  which  their  mental  and  physical  inferiority  may  always  be 
presumed.  The  Roman  law,  however,  with  its  remarkable  ten- 
dency to  innovate  on  ancient  usage  onl}-  just  so  far  as  the  exigency 
of  the  commonwealth  may  require,  preserves  both  the  primeval 
institution  and  the  natural  limitation  to  which  I  conceive  it  to  have 
been  subject.  In  every  relation  of  life  in  which  the  collective  com- 
munity might  have  occasion  to  avail  itself  of  his  wisdom  and 
strength,  for  all  purposes  of  counsel  or  of  war,  the  Filius  Familias, 
or  Son  under  Power,  was  as  free  as  his  father.  It  was  a  maxim  of 
Roman  jurisprudence  that  the  Patria  Potestas  did  not  extend  to  the 
Jus  Publicum.  Father  and  son  voted  together  in  the  city,  and 
fought  side  by  side  in  the  field  ;  indeed,  the  son,  as  general,  might 
happen  to  command  the  father,  or,  as  magistrate,  decide  on  his 
contracts  and  punish  his  delinquencies.  But  in  all  the  relations 
created  by  Private  Law,  the  son  lived  under  a  domestic  des- 
potism which,  considering  the  severity  it  retained  to  the  last,  and 
the  number  of  centuries  through  which  it  endured,  constitutes  one 
of  the  strangest  problems  in  legal  history. 

The  Patria  Potestas  of  the  Romans,  which  is  necessarily  our 
type  of  the  primeval  paternal  authority,  is  equally  difficult  to 
understand  as  an  institution  of  civilised  life,  whether  we  consider 
its  incidence  on  the  person  or  its  effects  on  property.  It  is  to  be 
regretted  that  a  chasm  which  exists  in  its  history  cannot  be  more 
completely  filled.  So  far  as  regards  the  person,  the  parent,  wheii 
our  information  commences,  has  over  his  children  the  jus  vitce 
necisque,  the  power  of  life  and  death,  and  a  fortiori  of  uncontrolled 
corporal  chastisement ;  he  can  modify  their  personal  condition  at 
pleasure ;   he  can  give  a  wife  to  his  son ;  he  can  give  his  daughter 


Chap.  XIV.]  PATRIA  POTESTAS  293 

in  marriage ;  he  can  divorce  his  children  of  either  sex ;  he  can 
transfer  them  to  another  family  by  adoption ;  and  he  can  sell 
them.  Late  in  the  Imperial  period  we  find  vestiges  of  all  these 
powers,  but  they  are  reduced  within  very  narrow  limits.  The 
unqualified  right  of  domestic  chastisement  has  become  a  right  of 
bringing  domestic  offences  under  the  cognisance  of  the  civil  magis- 
trate ;  the  privilege  of  dictating  marriage  has  declined  into  a  con- 
ditional veto ;  the  liberty  of  selling  has  been  virtually  abolished, 
and  adoption  itself,  destined  to  lose  almost  all  its  ancient  im- 
portance in  the  reformed  system  of  Justinian,  can  no  longer  be 
effected  without  the  assent  of  the  child  transferred  to  the  adoptive 
parentage.  In  short,  we  are  brought  very  close  to  the  verge  of 
the  ideas  which  have  at  length  prevailed  in  the  modern  world. 
But  between  these  widely  distant  epochs  there  is  an  interval  of 
obscurity,  and  we  can  only  guess  at  the  causes  which  permitted  the 
Patria  Potestas  to  last  as  long  as  it  did  by  rendering  it  more  toler- 
able than  it  appears.  The  active  discharge  of  the  most  important 
among  the  duties  which  the  son  owed  to  the  state  must  have  tem- 
pered the  authority  of  his  parent,  if  they  did  not  annul  it.  We  can 
readily  persuade  ourselves  that  the  paternal  despotism  could  not 
be  brought  into  play,  without  great  scandal,  against  a  man  of  full 
age  occupying  a  high  civil  office.  During  the  earlier  history,  how- 
ever, such  cases  of  practical  emancipation  would  be  rare  compared 
with  those  which  must  have  been  created  by  the  constant  wars  of 
the  Uoman  republic.  The  military  tribune  and  the  private 
soldier,  who  were  in  the  field  three-quarters  of  a  year  during  the 
earlier  contests,  at  a  later  period  the  proconsul  in  charge  of  a 
province,  and  the  legionaries  who  occupied  it,  cannot  have  had 
practical  reason  to  regard  themselves  as  the  slaves  of  a  despotic 
master ;  and  all  these  avenues  of  escape  tended  constantly  to 
multiply  themselves.  Victories  led  to  conquests,  concjuests  to 
occupations ;  the  mode  of  occupation  by  colonies  was  exchanged 
for  the  system  of  occupying  provinces  by  standing  armies.  Each 
step  in  advance  was  a  call  for  the  expatriation  of  more  Roman 
citizens,  and  a  fresh  draft  on  the  blood  of  the  failing  Latin  race. 
We  may  infer,  I  think,  that  a  strong  sentiment  in  favour  of  the 
relaxation  of  the  Patria  Potestas  had  become  fixed  by  the  time  that 
{he  pacification  of  the  world  commenced  on  the  establishment  of 
the  Empire.  The  first  serious  blows  at  the  ancient  institution  are 
attributed  to  the  earlier  Ca?sars,  and  some  isolated  interferences  of 
Trajan  and  Hadrian  seem  to  have  prepared  the  ground  for  a  series 
of  express  enactments  which,  though  we  cannot  always  determine 


294  PEKSONS  [Part  II. 

their  dates,  we  know  to  have  Hmited  the  father's  powers  on  the 
one  hand,  and  on  the  other  to  have  multipHed  facihties  for  their 
vohnitary  surrender.  The  older  mode  of  getting  rid  of  the  Potes- 
tas,  by  effecting  a  triple  sale  of  the  son's  person,  is  evidence,  I  may 
remark,  of  a  very  early  feeling  against  the  unnecessary  prolonga- 
tion of  the  powers.  The  rule  which  declared  that  the  son  should 
be  free  after  having  been  three  times  sold  by  his  father  seems  to 
have  been  originally  meant  to  entail  penal  consequences  on  a 
practice  which  revolted  even  the  imperfect  morality  of  the  primi- 
tive Roman.  But  even  before  the  publication  of  the  Twelve 
Tables,  it  had  been  turned,  by  the  ingenuity  of  the  jurisconsults, 
into  an  expedient  for  destroying  the  parental  authority  wherever 
the  father  desired  that  it  should  cease. 

Many  of  the  causes  which  helped  to  mitigate  the  stringency  of 
the  father's  power  over  the  persons  of  his  children  are  doubtless 
among  those  which  do  not  lie  upon  the  face  of  history.  We  cannot 
tell  how  far  public  opinion  may  have  paralysed  an  authority  which 
the  law  conferred  ;  or  how^  far  natural  affection  may  have  rendered 
it  endurable.  But  though  the  powers  over  the  yerson  may  have 
been  latterly  nominal,  the  whole  tenour  of  the  extant  Roman 
jurisprudence  suggests  that  the  father's  rights  over  the  son's 
•property  were  always  exercised  without  scruple  to  the  full  extent 
to  which  they  were  sanctioned  by  law.  There  is  nothing  to 
astonish  us  in  the  latitude  of  these  rights  when  they  first  show 
themselves.  The  ancient  law  of  Rome  forbade  the  Children 
under  Power  to  hold  property  apart  from  their  parent,  or  (we 
should  rather  say)  never  contemplated  the  possibility  of  their 
claiming  a  separate  ownership.  The  father  was  entitled  to  take 
the  whole  of  the  son's  acquisitions,  and  to  enjoy  the  benefit  of  his 
contracts,  without  being  entangled  in  any  compensating  liability. 
So  much  as  this  we  should  expect  from  the  constitution  of  the 
earliest  Roman  society;  for  we  can  hardly  form  a  notion  of  the 
primitive  family  group  unless  we  suppose  that  its  members  brought 
their  earnings  of  all  kinds  into  the  common  stock,  while  they 
were  unable  to  bind  it  by  improvident  individual  engagements. 

The  true  enigma  of  the  Patria  Potestas  does  not  reside  here, 
but  in  the  slowness  with  which  these  proprietary  privileges  of  the 
parent  were  curtailed,  and  in  the  circumstance  that,  before  they 
were  seriously  diminished,  the  whole  civilised  world  was  brought 
within  their  sphere.  No  innovation  of  any  kind  was  attempted  till 
the  first  years  of  the  Empire,  when  the  acquisitions  of  soldiers  on 
service  were  withdrawn  from  the  operation  of  the  Patria  Potes- 


Chap.  XIV.]  PATRIA   POTESTAS  295 

tas,  doubtless  as  part  of  the  reward  of  the  armies  which  had  over- 
thrown the  free  commonwealth.  Three  centuries  afterwards  the 
same  immunity  was  extended  to  the  earnings  of  persons  who  were 
in  the  civil  employment  of  the  state.  Both  changes  were  ob\iously 
limited  in  their  application,  and  they  were  so  contri\'ed  in  technical 
form  as  to  interfere  as  little  as  possible  with  the  principle  of  Patria 
Potestas.  A  certain  qualified  and  dependent  ownership  had 
always  been  recognised  by  the  Roman  law  in  the  perquisites  and 
savings  which  slaves  and  sons  under  power  were  not  compelled 
to  include  in  the  household  accounts,  and  the  special  name  of  this 
permissive  property,  Peculium,  was  applied  to  the  acquisitions 
newly  relieved  from  Patria  Potestas,  which  were  called  in  the  case 
of  soldiers  Castrense  Peculium,  and  Quasi-castrense  Peculium  in 
the  case  of  civil  servants.  Other  modifications  of  the  parental 
privileges  followed,  which  showed  a  less  studious  outward  respect 
for  the  ancient  principle.  Shortly  after  the  introduction  of  the 
Quasi-castrense  Peculium,  Constantine  the  Great  took  away  the 
father's  absolute  control  over  property  which  his  children  had 
inherited  from  their  mother,  and  reduced  it  to  a  usufruct,  or  life- 
interest.  A  few  more  changes  of  slight  importance  followed  in 
the  Western  Empire,  but  the  furthest  point  reached  was  in  the 
East,  under  Justinian,  who  enacted  that  unless  the  acquisitions 
of  the  child  were  derived  from  the  parent's  own  property,  the  par- 
ent's right  over  them  should  not  extend  beyond  enjoying  their 
produce  for  the  period  of  his  life.  Even  this,  the  utmost  relaxation 
of  the  Roman  Patria  Potestas,  left  it  far  ampler  and  severer  than 
any  analogous  institution  of  the  modern  world.  The  earliest 
modern  writers  on  jurisprudence  remarked  that  it  was  only  the 
fiercer  and  ruder  of  the  conquerors  of  the  Empire,  and  notably  the 
nations  of  Sclavonic  origin,  which  exhibited  a  Patria  Potestas  at 
all  resembling  that  which  was  described  in  the  Pandects  and  the 
Code.  All  the  Germanic  immigrants  seem  to  have  recognised  a 
corporate  union  of  the  family  under  the  mund,  or  authority  of  a 
patriarchal  chief ;  but  his  powers  are  obviously  only  the  relics  of 
a  decayed  Patria  Potestas,  and  fell  far  short  of  those  enjoyed  by 
the  Roman  father.  The  Franks  are  particularly  mentioned  as  not 
having  the  Roman  Institution,  and  accordingly  the  old  French 
lawyers,  even  when  most  busily  engaged  in  filling  the  interstices 
of  barbarous  customs  with  rules  of  Roman  law,  were  obliged  to 
protect  themselves  against  the  intrusion  of  the  Potestas  by  the 
express  maxim,  Puyssance  dc  pere  en  France  n'a  lieu.  The  tenac- 
ity of  the  Romans  in  maintaining  this  relic  of  their  most  ancient 


296  PERSONS  [Part  II. 

condition  is  in  itself  remarkable,  but  it  is  less  remarkable  than  the 
diffusion  of  the  Potestas  over  the  whole  of  a  civilisation  from  which 
it  had  once  disappeared.  While  the  Castrense  Peculium  con- 
stituted as  yet  the  sole  exception  to  the  father's  power  over  prop- 
erty, and  while  his  power  over  his  children's  persons  was  still 
extensive,  the  Roman  citizenship,  and  with  it  the  Patria  Potestas, 
were  spreading  into  every  corner  of  the  Empire.  Every  African  or 
Spaniard,  every  Gaul,  Briton,  or  Jew,  who  received  this  honour 
by  gift,  purchase,  or  inheritance,  placed  himself  under  the  Roman 
Law  of  Persons,  and,  though  our  authorities  intimate  that  children 
born  before  the  acquisition  of  citizenship  could  not  be  brought 
under  Power  against  their  will,  children  born  after  it  and  all  ulterior 
descendants  were  on  the  ordinary  footing  of  a  Roman  filiusfamilias. 
It  does  not  fall  within  the  province  of  this  treatise  to  examine  the 
mechanism  of  the  later  Roman  society,  but  I  may  be  permitted  to 
remark  that  there  is  little  foundation  for  the  opinion  which  repre- 
sents the  constitution  of  Antoninus  Caracalla  conferring  Roman 
citizenship  on  the  whole  of  his  subjects  as  a  measure  of  small 
importance.  However  we  may  interpret  it,  it  must  have  enor- 
mously enlarged  the  sphere  of  the  Patria  Potestas,  and  it  seems  to 
me  that  the  tightening  of  family  relations  which  it  effected  is  an 
agency  which  ought  to  be  kept  in  view  more  than  it  has  been,  in 
accounting  for  the  great  moral  revolution  which  was  transforming 
the  world. 

Before  this  branch  of  our  subject  is  dismissed,  it  should  be  ob- 
served that  the  Paterfamilias  was  answerable  for  the  delicts 
(or  torts)  of  his  Sons  under  Power.  He  was  similarly-  liable  for  the 
torts  of  his  slaves ;  but  in  both  cases  he  originally  possessed  the 
singular  privilege  of  tendering  the  delinquent's  person  in  full  satis- 
faction of  the  damage.  The  responsibility  thus  incurred  on  behalf 
of  sons,  coupled  with  the  mutual  incapacity  of  Parent  and  Child 
under  Power  to  sue  one  another,  has  seemed  to  some  jurists  to  be 
best  explained  by  the  assumption  of  a  "  unity  of  person"  between 
the  Paterfamilias  and  the  Filiusfamilias.  ...  I  can  only  say  at 
present  that  these  responsibilities  of  the  Paterfamilias,  and  other 
legal  phenomena  which  will  be  discussed  hereafter,  appear  to  me  to 
point  at  certain  duties  of  the  primitive  Patriarchal  chieftain  which 
balanced  his  rights.  I  conceive  that,  if  he  disposed  absolutely 
of  the  persons  and  fortunes  of  his  clansmen,  this  representative 
ownership  was  coextensive  with  a  liability  to  provide  for  all 
members  of  the  brotherhood  out  of  the  common  fund.  The 
difficulty  is  to  throw  ourselves  out  of  our  habitual  associations 


Chap.  XIV.]  PATRIA  POTESTAS  297 

sufficiently  for  conceiving  the  nature  of  his  obligation.  It  was  not 
a  legal  duty,  for  law  had  not  yet  penetrated  into  the  precinct  of  the 
Family.  To  call  it  moral  is  perhaps  to  anticipate  the  ideas  be- 
longing to  a  later  stage  of  mental  development ;  but  the  expres- 
sion "moral  obligation"  is  significant  enough  for  our  purpose,  if 
we  understand  by  it  a  duty  semi-consciously  followed  and  enforced 
rather  by  instinct  and  habit  than  by  definite  sanctions. 

The  Patria  Potestas,  in  its  normal  shape,  has  not  been,  and,  as 
it  seems  to  me,  could  not  have  been,  a  generally  durable  institu- 
tion. The  proof  of  its  former  universality  is  therefore  incomplete 
so  long  as  we  consider  it  by  itself ;  but  the  demonstration  may 
be  carried  much  further  by  examining  other  departments  of 
ancient  law  which  depend  on  it  ultimately,  but  not  by  a 
thread  of  connection  visible  in  all  its  parts  or  to  all  eyes.  Let  us 
turn  for  example  to  Kinship,  or  in  other  words,  to  the  scale  on 
which  the  proximity  of  relatives  to  each  other  is  calculated  in 
archaic  jurisprudence.  Here  again  it  will  be  convenient  to  employ 
the  Roman  terms.  Agnatic  and  Cognatic  relationship.  Cognatic 
relationship  is  simply  the  conception  of  kinship  familiar  to  modern 
ideas  :  it  is  the  relationship  arising  through  common  descent  from 
the  same  pair  of  married  persons,  whether  the  descent  be  traced 
through  males  or  females.  Agnatic  relationship  is  something  very 
different:  it  excludes  a  number  of  persons  whom  we  in  our  day 
should  certainly  consider  of  kin  to  ourselves,  and  it  includes  many 
more  whom  we  should  never  reckon  among  our  kindred.  It  is  in 
truth  the  connection  existing  between  the  members  of  the  Family, 
conceived  as  it  was  in  the  most  ancient  times.  The  limits  of  this 
connection  are  far  from  conterminous  with  those  of  modern  rela- 
tionship. 

Cognates  then  are  all  those  persons  who  can  trace  their  blood  to  a 
single  ancestor  and  ancestress ;  or  if  we  take  the  strict  technical 
meaning  of  the  word  in  Roman  law,  they  are  all  who  trace  their 
blood  to  the  legitimate  marriage  of  a  common  pair.  "  Cognation  " 
is  therefore  a  relative  term,  and  the  degree  of  connection  in  blood 
which  it  indicates  depends  on  the  particular  marriage  which  is 
selected  as  the  commencement  of  the  calculation.  If  we  begin 
with  the  marriage  of  father  and  mother.  Cognation  will  only 
express  the  relationship  of  brothers  and  sisters ;  if  we  take  that  of 
the  grandfather  and  grandmother,  then  uncles,  aunts,  and  their 
descendants  will  also  be  included  in  the  notion  of  Cognation,  and 
following  the  same  process  a  larger  number  of  Cognates  may  be 
continually  obtained  by  choosing  the  starting  point  higher  and 


298  PEKSONS  [Part  II. 

higher  up  in  the  Hne  of  ascent.  All  this  is  easily  understood  by  a 
modern ;  but  who  are  the  Agnates  ?  In  the  first  place,  they  are  all 
the  Cognates  who  trace  their  connection  exclusively  through  males. 
A  table  of  Cognates  is,  of  course,  formed  by  taking  each  lineal 
ancestor  in  turn  and  including  all  his  descendants  of  both  sexes  in 
the  tabular  view  ;  if  then,  in  tracing  the  various  branches  of  such  a 
genealogical  table  or  tree,  we  stop  whenever  we  come  to  the  name 
of  a  female  and  pursue  that  particular  branch  or  ramification  no 
further,  all  who  remain  after  the  descendants  of  women  have  been 
excluded  are  Agnates,  and  their  connection  together  is  Agnatic 
Relationship.  I  dwell  a  little  on  the  process  which  is  practically 
followed  in  separating  them  from  the  Cognates,  because  it  explains 
a  memorable  legal  maxim,  "  INIulier  est  finis  familise"  —  a  woman 
is  the  terminus  of  the  family.  A  female  name  closes. the  branch 
or  twig  of  the  genealogy  in  which  it  occurs.  None  of  the  descend- 
ants of  a  female  are  included  in  the  primitive  notion  of  family 
relationship. 

If  the  system  of  archaic  law  at  which  we  are  looking  be  one 
which  admits  Adoption,  we  must  add  to  the  Agnates  thus  obtained 
all  persons,  male  or  female,  who  have  been  brought  into  the  family 
by  the  artificial  extension  of  its  boundaries.  But  the  descendants 
of  such  persons  will  only  be  Agnates,  if  they  satisfy  the  conditions 
which  have  just  been  described. 

What  then  is  the  reason  of  this  arbitrary  inclusion  and  exclusion  ? 
Why  should  a  conception  of  Kinship  so  elastic  as  to  include  stran- 
gers brought  into  the  family  by  adoption,  be  nevertheless  so  narrow 
as  to  shut  out  the  descendants  of  a  female  member  ?  To  solve  these 
questions  we  must  recur  to  the  Patria  Potestas.  The  foundation 
of  Agnation  is  not  the  marriage  of  Father  and  Mother,  but  the 
authority  of  the  Father.  All  persons  are  Agnatically  connected 
together  who  are  under  the  same  Paternal  Power,  or  who  have  been 
under  it,  or  who  might  have  been  under  it  if  their  lineal  ancestor 
had  lived  long  enough  to  exercise  his  empire.  In  truth,  in  the 
primitive  view.  Relationship  is  exactly  limited  by  Patria  Potestas. 
Where  the  Potestas  begins,  Kinship  begins  ;  and  therefore  adoptive 
relatives  are  among  the  kindred.  WTiere  the  Potestas  ends. 
Kinship  ends ;  so  that  a  son  emancipated  by  his  father  loses  all 
rights  of  Agnation.  And  here  we  have  the  reason  why  the  de- 
scendants of  females  are  outside  the  limits  of  archaic  kinship.  If  a 
woman  died  unmarried,  she  could  have  no  legitimate  descendants. 
If  she  married,  her  children  fell  under  the  Patria  Potestas,  not  of 
her  Father,  but  of  her  Husband,  and  thus  were  lost  to  her  own 


Chap.  XIV.]  PATRIA  POTESTAS  299 

family.  It  is  obvious  that  the  organisation  of  primitive  societies 
would  have  been  confounded,  if  men  had  called  themselves  rela- 
tives of  their  mother's  relatives.  The  inference  would  have  been 
that  a  person  might  be  subject  to  two  distinct  Patrise  Potestates ; 
but  distinct  Patrise  Potestates  implied  distinct  jurisdictions,  so 
that  anybody'  amenable  to  two  of  them  at  the  same  tune  would 
have  lived  under  two  different  dispensations.  As  long  as  the 
Family  was  an  imperium  in  imperio,  a  community  within  the  com- 
monwealth governed  by  its  own  institutions  of  which  the  parent 
was  the  source,  the  limitation  of  relationship  to  the  Agnates  was 
a  necessary  security  against  a  conflict  of  laws  in  the  domestic 
forum. 

The  Paternal  Powers  proper  are  extinguished  by  the  death  of 
the  Parent,  but  Agnation  is  as  it  were  a  mould  which  retains  their 
imprint  after  the}'  ha\'e  ceased  to  exist.  Hence  comes  the  interest 
of  Agnation  for  the  inquirer  into  the  history  of  jurisprudence. 
The  powers  themselves  are  discernible  in  comparatively  few  monu- 
ments of  ancient  law,  but  Agnatic  Relationship,  which  implies 
their  former  existence,  is  discoverable  almost  everywhere.  There 
are  few  indigenous  bodies  of  law  belonging  to  communities  of  the 
Indo-European  stock,  which  do  not  exhibit  peculiarities  in  the  most 
ancient  part  of  their  structure  which  are  clearly  referable  to  Agna- 
tion. In  Hindoo  law,  for  example,  which  is  saturated  with  the 
primitive  notions  of  family  dependency,  kinship  is  entirely  Ag- 
natic, and  I  am  informed  that  in  Hindoo  genealogies  the  names  of 
women  are  generally  omitted  altogether.  The  same  view  of  rela- 
tionship pervades  so  much  of  the  laws  of  the  races  who  overran 
the  Roman  Empire  as  appears  to  have  really  formed  part  of  their 
primitive  usage,  and  we  may  suspect  that  it  would  have  perpetu- 
ated itself  even  more  than  it  has  in  modern  European  jurisprudence, 
if  it  had  not  been  for  the  vast  influence  of  the  later  Roman  law  on 
modern  thought.  The  Prsetors  early  laid  hold  on  Cognation  as  the 
natural  form  of  kinship,  and  spared  no  pains  in  purifying  their 
system  from  the  older  conception.  Their  ideas  have  descended 
to  us,  but  still  traces  of  Agnation  are  to  be  seen  in  many  of  the 
modern  rules  of  succession  after  death.  The  exclusion  of  females 
and  their  children  from  governmental  functions,  commonly  attrib- 
uted to  the  usage  of  the  Salian  Franks,  has  certainly  an  agnatic 
origin,  being  descended  from  the  ancient  German  rule  of  succes- 
sion to  allodial  property.  In  Agnation  too  is  to  be  sought  the 
explanation  of  that  extraordinary  rule  of  English  Law,  only  re- 
cently repealed,  which  prohibited  brothers  of  the  half-blood  from 


300  PERSONS  [Part  II. 

succeeding  to  one  another's  lands  In  the  Customs  of  Normandy, 
the  rule  applies  to  uterine  brothers  only,  that  is,  to  brothers  by  the 
same  mother  but  not  by  the  same  father ;  and,  limited  in  this  way, 
it  is  a  strict  deduction  from  the  system  of  Agnation,  under  which 
uterine  brothers  are  no  relations  at  all  to  one  another.  When  it 
was  transplanted  to  England,  the  English  judges,  who  had  no  clue 
to  its  principle,  interpreted  it  as  a  general  prohibition  against  the 
succession  of  the  half-blood,  and  extended  it  to  consanguineous 
brothers,  that  is,  to  sons  of  the  same  father  by  different  wives.  In 
all  the  literature  which  enshrines  the  pretended  philosophy  of  law, 
there  is  nothing  more  curious  than  the  pages  of  elaborate  sophistry 
in  which  Blackstone  attempts  to  explain  and  justify  the  exclusion 
of  the  half-blood. 


Chapter  XV 
WOMEN   AND   MARRIAGE   UNDER   CIVILIZATION  i 

1.  It  is  with  the  Patriarchal  type  of  Family  organization,  it 
would  seem,  that  most  of  the  civilized  races  have  started  their 
career  in  history.  The  stage  of  Mother-right  is  clearly  left  behind 
when  their  history  begins.  Traces  of  it  remain,  like  the  right 
of  the  ^Mother's  Brother  in  the  German  Law,  but  they  are  mere 
traces  which  would  be  unintelligible  if  we  had  not  a  mass  of  cus- 
toms among  other  peoples  by  which  to  interpret  them.  ^Yhether 
we  look  at  the  ancient  laws  and  customs  of  India,  Persia,  Greece 
or  Rome,  of  the  early  Celtic  and  German  tribes  or  the  ancient 
Slavs,  or  turn  to  the  Semitic  and  Mongolian  civilizations  and  trace 
back  the  Family  through  Islam  to  the  Arabia  of  Mohammed's 
time,  through  the  Old  Testament  to  the  days  of  the  Patriarchs, 
through  Babylonian  civilization  to  the  Code  of  Hammurabi, 
through  Chinese  literature  to  the  ancient  classical  books,  we  find 
that  where  civilization  is  beginning  the  Family  is  in  some  form  or 
other  already  organized  under  the  rule  of  the  Father.^  The  type 
of  marriage  law,  of  family  structure,  and  for  the  most  part  the  atti- 
tude to  woman  appropriate  to  the  Patriarchal  stage  underlie  the 
social  history  of  civilization  and  are  deeply  imbedded  in  its  struc- 
ture. The  strongly  knit  family  life,  the  close  personal  relations  of 
father,  mother  and  child  have  formed  the  nucleus  of  the  stronger 
and  greater  social  growths.  Over  a  large  part  of  the  civilized 
world  the  extension  of  these  relations  by  the  family  cult  and  the 
worship  of  ancestors,  has  proved  to  be  a  social  bond  of  marvellous 
strength  and  endurance.  Yet  this  unity  may  be  purchased  dearly 
by  the  loss  of  independence  on  the  part  of  the  individual  members 
of  the  family,  and  we  have  seen  how  far  this  is  often  carried  in  the 
barbaric  world.     We  have  now  to  see  how  civilization  starting  in 

1  [B.y  L.  T.  HoBHousE.  Reprinted  from  "Morals  in  Evolution,"  by 
permission  of  Henrj'  Holt  and  Company,  New  York.  Abbreviated  and 
omitted  book-titles  with  the  detail  of  editions  are  supplied  by  the  author's 
reference  list  on  p.  xiii,  seq..  Vol.  I  of  the  original  work.] 

-  The  Egyptian  family  is  perhaps  an  exception. 

301 


302  PERSONS  [Past  II. 

the  great  majority  of  cases  with  this  type  of  family  has  dealt  with 
the  social  and  ethical  problems  involved. 

In  the  early  civilization  of  Asia,  the  position  of  women,  and 
particularly  of  married  women,  w^as  not  worse,  but  on  the  whole 
better  than  one  would  expect  on  the  analogy  of  later  times  and 
of  contemporary,  civilizations.  In  ancient  Babylon  in  the  time 
of  Hammurabi,  i.e.  probably  between  B.C.  2250  and  1950,  mar- 
riage was  arranged  with  the  parents  without  reference  to  the 
wishes  of  the  bride  ^  by  a  form  of  purchase.  It  was,  however,  a 
modified  form  approaching  more  nearly  to  the  exchange  of  gifts 
which  we  find  in  many  primitive  races.  A  sum  was  given,  it 
appears  from  the  code,  to  the  wife's  father  as  w^ell  as  to  the  bride 
herself,  but  this  payment^  was  not  universal,  and  on  the  other 
side  of  the  account  the  father  made  over  to  his  daughter  on  her 
marriage  a  dowTy  which  remained  her  own  property  in  the  sense 
that  it  was  returned  to  her  in  the  case  of  divorce  or  on  the  death 
of  her  husband,  that  it  passed  to  her  children,  and  failing  them 
to  her  father.^  Thus  the  method  of  marriage  appears  as  a  quasi- 
commercial  transaction,  and  the  decision  thereon  belongs  to  the 
parents  of  the  parties."*  Similar  commercial  considerations  dom- 
inate the  law  of  divorce,  the  leading  points  of  which  may  be 
given  in  the  words  of  Hammurabi's  code. 

"137.  If  a  man  has  set  his  face  to  put  away  his  concubine  who  has 
borne  him  children  or  his  wife  who  has  granted  him  children,  to  that 
woman  he  shall  return  her  her  marriage  portion  and  shall  give  her  the 
usufruct  of  field,  garden,  and  goods,  and  she  shall  bring  up  her  children. 
From  the  time  that  her  children  are  grown  up,  from  whatever  is  given 
to  her  children  they  shall  give  her  a  share  like  that  of  one  son,  and  she 
shall  marry  the  husband  of  her  choice. 

"  138.  If  a  man  has  put  away  his  bride  who  has  not  borne  him  children, 
he  shall  give  her  money  as  much  as  her  bride  price,  and  shall  pay  her  the 
marriage  portion  which  she  brought  from  her  father's  house,  and  shaU 
put  her  away. 

"139.  If  there  was  no  bride  price,  he  shall  give  her  one  mina  of  silver 
for  a  divorce. 

"140.  If  he  is  a  poor  man,  he  shall  give  her  one-third  of  a  mina  of 
silver."  ^ 

^  Meissner,  "Beitrage  zum  altbabylonischen  Privatrecht,"  13. 

^  The  case  of  marriage  without  a  bride  price  is  contemplated  in  Ham- 
mm-abi,  section  139  (Kohler,  118),  that  is  to  say,  if  bride  price  is  the  right 
translation,  and  if  it  is  not  rather  the  sum  which,  in  the  regular  contract 
forms,  the  husband  agrees  to  give  the  wife  in  ease  of  divorce. 

3  The  dowry  might  exceed  the  bride  price  (section  164).  On  the  other 
hand,  it  remained  in  a  sense  in  the  wife's  familj%  as,  if  children  failed,  her 
father  regained  it  on  re-paying  the  bride  price  (section  163). 

«  See  sections  163-6,  159-161. 

^  I  quote  Mr.  Johns'  translation,  but  following  Kohler,  have  twice  sub- 
stituted bride  price  for  "dowry."  It  is  clearly  intended  that  the  unof- 
fending wife  shall  have  not  only  her  dowry,  which  is  really  her  own  prop- 
erty or  that  of  her  family  (section  162),  but  either  the  bride  price,  which 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER   CIVILIZATION  303 

On  the  other  hand,  the  woman  who  "  has  set  her  face  to  go 
out  and  has  acted  the  fool,  has  wasted  her  house,  has  belittled  her 
husband,"  may  either  be  divorced  without  compensation,  or 
retained  in  the  house  as  slave  of  a  new  wife.  The  wife  may  also 
claim  a  divorce  (or  separation)  ^  "  if  she  has  been  economical  and 
has  no  vice,  and  her  husband  has  gone  out  and  greatly  belittled 
her,"  but  she  acts  at  some  risk,  for  if  on  investigation  it  turns  out 
that  she  had  been  uneconomical  or  a  goer  about,  "  that  woman 
one  shall  throw  her  into  the  waters."  ^  Thus  the  wife  has  certain 
pecuniary  guarantees  against  arbitrary  divorce,  while  if  ill-treated 
she  may  leave  her  husband,  but  her  position  as  his  subject  is  marked 
by  the  manner  in  which  infidelity  is  treated.  The  law  provides 
that  both  parties  should  be  put  to  death  unless  the  king  pardons 
his  servant  or  the  "  owner  "  his  wife.^  The  lordship  of  the  husband 
is  seen  also  in  his  power  to  dispose  of  his  wife  as  well  as  her  children 
for  debt.^ 

Polygamy  appears,  not  in  the  rich  luxuriance  of  later  Asiatic 
civilization,  but  in  a  restricted  form.  A  man  might  marry  a 
second  wife  if  a  "  sickness  has  seized  "  his  first  wife,  but  the  first 
is  not  to  be  put  away.^  Apparently  this  is  the  only  case  in  which 
two  fully  equal  wives  are  contemplated  by  the  code,  but  it  was 
also  possible  for  a  man  to  take  a  secondary  wife  or  concubine, 
who  was  to  be  subordinate  to  the  chief  wife.  This  was  a  common 
practice  when  the  wife  was  childless,  but  was  apparently  legal 
even  when  she  had  children.^ 

represents,  so  to  say,  the  worth  of  her  own  person,  or,  what  I  cannot  help 
suspecting  to  be  the  meaning,  the  amount  which  at  the  time  of  the  marriage 
the  husband  contracted  to  give  her  in  the  event  of  a  divorce.  In  the  con- 
tracts of  the  period,  the  sum  is  specified.  In  one  case  it  is  a  mina,  in 
another  ten  shekels.  The  wife  also  states  explicitly  that  if  she  repudiates 
her  husband  she  shall  be  drowned,  strangled  or  sold,  as  the  case  may  be. 

'  Nothing  is  said  of  her  being  allowed  to  marry  again.  She  is  to  go 
to  her  father's  house.  Observe  above  that  when  a  divorced  woman  has 
children  it  seems  to  be  implied  that  she  will  at  any  rate  remain  immarried 
till  they  are  grown  up. 

^  The  translations  differ  here.  I  follow  Mr.  Johns.  Hammurabi,  sec- 
tions 141,  142,  143. 

^  Hammurabi,  section  129.  On  the  other  hand,  she  is  allowed  to  purge 
herself  by  oath,  from  an  unproved  accusation;  if  it  is  made  by  her  hus- 
band, "she  shall  swear  by  God  and  return  to  her  house"  ;  if  it  is  made 
by  some  one  else,  she  shall  plunge  into  the  holy  river.      (131,  132.) 

•^  The  period  of  debt  slavery  was,  however,  limited  to  three  j^ears. 
Hammurabi,  117. 

^  Hammurabi,  148. 

*  The  provisions  of  the  code  are  not  perfectly  clear.  The  relevant 
sections  run  as  follows  :  —  144.  "If  a  man  has  espoused  a  woman,  and 
that  woman  has  given  a  maid  to  her  husband  and  has  brought  up  children, 
that  man  has  set  his  face  to  take  a  concubine,  one  shall  not  countenance 
that  man,  he  shall  not  take  a  concubine.      145.  If  a  man  has  espoused  a 


304  PERSONS  [Part  II. 

To  sum  up,  the  early  Babylonian  marriage  law  contemplates 
marriage  by  purchase  or  exchange  of  gifts  with  a  restricted  polyg- 
amy and  considerable  authority  and  privileges  for  the  husband, 
moderated  by  certain  provisions  for  the  protection  and  mainte- 
nance of  the  wife.  But  in  relation  to  other  persons  the  wife  is  a 
much  more  free  agent  than  in  many  civilized  countries  at  the 
present,  or  at  any  rate  in  recent  times.  She  could  already  conduct 
business  and  in  certain  cases  dispose  of  property,  and,  at  any  rate 
in  later  Babylonian  times,  she  appears  as  possessed  of  full  legal 
personality,  carrying  on  processes  of  law  and  appearing  as  a  quali- 
fied witness.^     In  this  later  period  moreover  —  that  of  the  last 

woman  and  she  has  not  granted  him  children  and  he  has  set  his  face  to 
take  a  concubine,  that  man  shall  take  a  concubine,  he  shall  cause  her  to 
enter  into  his  house.  That  concubine  he  shall  not  put  on  an  equality 
with  his  wife."  (I  have  followed  Mr.  Johns'  translation,  but  substituted 
"woman"  for  "votary"  in  accordance  with  the  views  of  other  trans- 
lators.) It  is  not  clear  from  this,  as  it  stands,  whether  a  man  could 
compel  his  wife  to  give  him  a  concubine,  in  case  the  wife  had  children, 
but  elsewhere  the  case  of  a  man  having  children  by  both  wife  and  concu- 
bine is  clearly  contemplated,  and  in  the  contracts  there  are  cases  of  a  man 
marrying  two  wives,  of  whom  one  is  to  be  subject  to  the  other.  Thus 
Arad  Samas  takes  Iltani,  the  sister  of  Taramka,  as  his  wife.  He  prom- 
ises to  care  for  her  well-being,  and  to  carry  her  chair  to  the  temple  of 
Marduk ;  he  is  already  married  to  Taramka,  but  Taramka  is  placed  by 
the  contract  in  an  inferior  position  to  Iltani.  "All  cliildren,"  the  con- 
tract reads,  "as  many  as  there  are,  and  as  many  as  shall  be  born,  are 
Iltani's."  If  Taramka  says  to  Iltani,  "You  are  not  my  sister,"  some- 
thing terrible  happens,  as  to  the  natiu-e  of  which  a  hiatus  in  the  inscription 
leaves  us  in  ignorance.  If  either  wife  says  to  Arad  Samas,  "You  are  not 
my  husband,"  she  is  to  be  branded  and  sold  for  money ;  if  they  both  do 
it  (presumably  if  they  conspire  to  do  so),  they  are  to  be  thrown  into  the 
river.  If  Arad  Samas  repudiates  either  of  them,  he  is  to  pay  a  mina  of 
silver.  (Meissner,  ib.,  p.  71.)  In  this  contract,  essentially  the  same  law 
as  that  of  Hammm-abi  is  seen  in  active  operation,  and  it  is  clear  that  a 
certain  form  of  polygamy  or  concubinage  is  contemplated,  although  there 
are  children  in  existence  by  the  first  wife.  Apparently  the  object  of  the 
code  is  to  maintain  the  supremacy  of  the  chief  wife,  w^hile  imposing  on 
her,  if  childless,  the  duty  of  granting  cliildren  to  her  husband.  The  con- 
cubine should  be  pro\ided  by  her.  If  she  failed  to  give  him  one,  the  man 
might  take  one,  but  must  still  treat  his  wife  as  mistress  of  the  home. 
There  is  no  prohibition  of  concubinage  merely  on  the  ground  that  the 
legitimate  wife  has  children  of  her  own.  Further  it  is  only  the  regular 
concubinage  with  a  fixed  status,  determined  by  contract,  which  is  thus 
limited.  There  is  nothing  said  to  limit  intercourse  ^vith  a  female  slave, 
whose  children  might  be  adopted  at  will  by  the  father,  and  thus  share  in 
the  inheritance  with  the  legitimate  children.  {Hamviurabi,  170,  171.) 
On  the  whole  we  gather  (1)  that,  in  case  of  sickness,  there  might  be  two 
regular  wiA'es ;  (2)  there  might  be  in  case  of  childlessness,  and  perhaps  in 
other  cases  also,  a  regular  concubine,  subordinate  to  the  wife ;  (3)  a  slave 
concubine  unprotected  by  contract,  whose  children  might  or  might  not 
be  recognized  and  inherit. 

^  Kohler  and  Peiser,  "Aus  dem  Babylonischen  Reehtsleben,"  iii.  p.  8, 
etc.  The  marriage  law  had  also  improved  in  the  wife's  favom*.  Con- 
tracts of  marriage  by  purchase  are  very  rare,  though  one  exists  of  the  thir- 
teenth year  of  Nebuchadnezzar,  in  which  the  wife  is  bought  for  a  slave  for 
1|  gold  minas.     {Ib.,  vol.  i.  p.  8.) 


4 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER    CIVILIZATION  305 

centuries  of  the  independent  Babylonian  civilization  —  it  appears 
from  the  contracts  that  a  woman  could  protect  herself  against  the 
advent  of  a  second  wife  by  pecuniary  penalties  in  the  marriage 
contract.^  On  the  other  hand,  her  marriage  still  appears  to  be 
at  the  disposal  of  her  male  relations,  her  brothers,  for  instance, 
when  the  father  was  dead.  Indeed,  even  the  son  required  the 
father's  consent  to  his  marriage.  To  this  extent  the  patriarchal 
power  had  endured.^ 

2.  In  ancient  Egj^Dt  a  good  deal  of  obscurity  surrounds  the  posi- 
tion of  women.  We  have  to  re-construct  it  partly  from  marriage 
contracts  which  perhaps  do  not  show  us  all  the  conditions  of  the 
bargain,  partly  from  incidents  in  stories,  partly  from  passages  in 
the  moralists,  partly  from  the  descriptions  of  Greek  travellers. 
We  have  no  precise  and  certain  information  as  to  the  structure  of 
the  family,  on  which  everything  turns ;  and  we  are  dealing  with  a 
period  of  four  thousand  years  or  more,  in  the  course  of  which  there 
is  time  even  in  the  slow-moving  East  for  many  things  to  change. 
In  fact,  our  fullest  information  relates  to  the  very  latest  period 
of  independent  Egyptian  history,  and  to  the  time  of  the  subjection 
to  Persians,  Greeks,  and  Romans.  This  information  is  derived 
from  numerous  marriage  contracts,  a  few  of  which  are  as  early  as 
the  time  of  King  Bocchoris  (circa  B.C.  730),  while  the  greater 
number  are  of  Persian  and  Ptolemaic  times.  In  this  period  there 
was  no  sale  by  the  parents,^  but  the  bride  gift  went  to  the  bride 
herself,  and  the  husband  in  the  contract  further  stipulated  how 
much  he  will  give  for  her  support,  and  promises  that  the  children 
shall  be  his  heirs.  The  woman's  own  property  remains  generally 
at  her  disposal,  and  she  retains  the  right  in  the  contracts  of  leaving 
her  husband  and  keeping  her  property  together  with  the  bride  gift. 
She  also  can  secure  herself  against  divorce  by  a  fictitious  dowry 

1  The  husband  promises  if  he  takes  another  Tvife  to  give  her  a  mina 
and  send  her  home.  This  seems  to  have  been  a  common  protection  against 
poh'gamy.  The  wife  still  engages  to  be  put  to  death,  if  unfaithful. 
{Kohlcr  and  Reiser,  i.  7,  8.  Cf.  Victor  Marx,  "Die  Stellung  der  Frauen 
in  Babylonien ;   Beitrage  zur  AssjTiologie,"  bd.  4,  hft.  i.  p.  5,  seq.) 

2  Kohler  and  Reiser,  i.  p.  9,  and  ii.  p.  7.  The  right  of  the  father  is 
limited  in  Hammural^.  He  might  only  disinherit  a  son  for  a  serious 
crime,  and  then  only  for  a  second  offence,  and  wth  the  approval  of  a  judge. 
(168,  169.)  In  other  words,  the  property  was  the  family's,  and  the  father 
had  only  limited  rights  over  it. 

3  Nor  do  they  appear  in  the  contract.  Yet  probably  their  authority 
was  or  had  been  at  le-jst  in  theory  absolute,  even  over  the  son.  [Revil- 
lout,  "Precis  du  droit  Egyptien,"  p.  1102.)  In  the  story  of  the  enchanted 
princess,  the  daughter  only  gets  her  own  way  by  threatening  suicide. 
(TF.  Max  Miiller,  p.  3.) 


306  PERSONS  [Part  II. 

which  the  husband  is  to  pay  back  ^  to  her  in  case  he  sends  her 
away. 

Such  contracts  appear  to  be  wholly  in  favour  of  the  woman, 
and  in  the  light  of  them  we  can  understand  the  statement  of 
Diodorus  that  among  the  Egyptians  the  wife  ruled  the  husband, 
though  he  clearly  exaggerates  when  he  says  that  in  the  marriage 
contract  there  was  a  specific  agreement  that  the  husband  should  in 
all  things  obey  the  w^ife.^  This,  however,  gives  us  one  side  of  the 
shield  only.  The  very  fact  that  the  wife  protected  herself  from 
divorce  or  from  the  marriage  of  a  second  wife  by  special  clauses  in 
the  marriage  contract  goes  to  prove  that  she  was  not  so  pro- 
tected by  the  general  law,  and  in  point  of  fact  there  is  evidence 
in  the  monuments  and  in  the  popular  stories  both  for  polygamy 
and  for  looser  unions  admitting  arbitrary  divorce.  Thus  in  the 
story  of  the  Squinting  Woman  we  read  that  "  she  was  twenty 
years  in  the  house  of  her  husband.  When  he  found  another  woman 
he  said  to  her,  '  I  divorce  you,  you  squint.'  "  ^  Presumably  the 
poor  lady  had  not  taken  the  precaution  to  protect  herself  by  a 
marriage  contract,  or  perhaps  she  had  not  the  means  to  do  so,  for 
naturally  conjugal  rights  resting  upon  considerations  of  property 
could  only  be  enforced  among  the  propertied  classes,  and  probably 
only  there  in  cases  where  the  wife's  dower  was  a  substantial  con- 
sideration. And  if,  as  good  authorities^  hold,  this  pecuniary 
security  against  the  possibility  that  the  husband  "should  be  averse 
to  her  and  seek  another  wife"  formed  the  chief  difference  between 
the  wife  and  the  mistress,  we  can  easily  understand  how  it  was  that 
much  looser  relations  remained  the  rule  both  in  the  highest  classes 
and  among  the  mass  of  the  people.  The  privileged  position  which 
the  wife  occupies  in  the  contracts  would  seem,  then,  to  arise 
largely  from  considerations  of  property  and  inheritance,  though 

1  W.  Max  Mailer,  "  Liebespoesie  der  alten  Aeg:ypter,"  p.  4  ff. 

^  Diodorus,  i.  27.  Trapa  to?s  Idiibrais  Kvpieveiv  tt]v  yvvaiKa  Tavdpos,  iv  ttj 
Tijs  wpoiK&i  (Tvyypacpri  irpocro/JioXoyovvTiov  rCov  ya/jLoiJvTdjv  diravra  weidapxV'^^'-v  ttj  ya- 
fwvfj.4vri.  Some  instances  are,  however,  quoted  of  post-nuptial  gifts  in 
which  the  husband  makes  over  all  his  possessions  to  his  "wife,  on  condition 
that  she  is  responsible  for  his  maintenance  throughout  life  and  for  his 
tomb.  {Revillout,  1092.)  Cf.  also  the  contract  of  Panofre,  in  which, 
seemingly,  full  power  is  given  to  the  wife  and  none  to  the  husband.  {Ih., 
1005.)     M.  Revillout  regards  this  as  a  compensation  for  seduction. 

3  W.  Max  Muller,  I.  c,  p.  5. 

*  How  completely  the  terms  of  the  contract  were  determined  by  the 
position  of  the  parties  and  the  conditions  of  the  bargain  is  shown  by  the 
fact  that  from  the  very  same  period  we  get  contracts  in  which  the  wife 
hands  herself  over  as  a  slave,  with  all  her  belongings  down  to  the  clothes 
on  her  back.  The  man  merely  promises  not  to  take  a  concubine.  {Re- 
villout, p.  996.)  In  some  contracts,  again,  the  wfe  pledges  herself,  if  she 
leaves  the  husband,  to  restore  all  his  gifts  tenfold.      {lb.,  1002.) 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER   CIVILIZATION  307 

based  also  on  the  freedom  of  the  Egyptian  woman  to  carry  on 
commerce  and  mdustry  and  to  make  contracts  for  her  own  benefit. 
With  this  freedom,  which  is  very  possibly  associated  with  a  general 
breakdown  of  an  older  joint  family-  system  about  the  epoch  of 
Bocchoris,  she  —  or  her  father  on  her  behalf  —  is  enabled  to  bar- 
gain either  for  the  fidelity  of  her  husband  or  for  freedom  for  herself 
to  leave  him  —  in  some  cases  even  for  both  together  ^  —  her 
property  being  secured  to  her  and  the  children  of  the  marriage. 
Apart  from  such  a  bargain,  if  this  view  is  accurate,  her  position 
would  be  a  very  different  one.^ 

1  See  Revillout,  "Precis  du  droit  Egyptien,"  p.  1029,  and  cf.  Micller, 
p.  4. 

2  In  the  interpretation  of  the  contracts  everything  really  turns  on  the 
dowTy.  If  this  is  real  the  whole  position  is  readily  intelligible.  The 
husband  receives  (as  the  contracts  recite)  so  much  from  the  wife.  But  he 
holds  it  in  trust  for  her,  to  pay  her  a  fixed  income  from  it  while  she  is 
his  wife,  or,  if  she  leaves  him,  to  refund  it.  She  keeps  the  property  in 
case  of  divorce  because  it  was  originally  hers,  and  has  throughout  been 
held  for  her.  Moreover,  the  property  is  settled  on  the  children  of  the 
maiTiage,  and  it  appears  to  be  in  their  interest  as  much  as  the  wife's  that 
the  contract  is  made.  So  far  the  only  important  right  of  the  ^vife  is 
that  of  free  separation.  If,  however,  as  seems  to  be  held  by  Revillout, 
p.  1079,  and  Muller,  the  dowry  was  often  fictitious,  the  bargain  was  cer- 
tainly favourable  to  the  woman  in  a  remarkable  degree.  In  that  case  we 
must  suppose  that  as  a  conditionof  marriage,  she  exacted  the  settlement  of 
a  man's  whole  property  on  herself  and  children,  retaining  full  Uberty  of  leav- 
ing him  at  will,  and  taking  the  property  with  her.  Is  this  credible  ?  Such 
a  settlement  occin-s  in  the  Setne  story.  Ta-bubue  makes  her  would-be 
seducer  first  execute  a  deed  in  her  favour :  she  then  calls  in  his  children 
to  mtness  it,  and  finally  makes  him  kill  them.  This,  however,  belongs  to 
the  region  of  fairy  tale.  It  seems  far  more  probable  that  in  the  normal 
case,  the  free  position  of  the  -nife  was  (as  later  in  Rome)  simply-  purchased 
by  the  dowry.  In  the  Theban  contracts  there  is  no  dowTy,  and  nothing 
is  said  of  divorce  by  the  woman.  On  the  other  hand,  the  man  makes 
a  nuptial  gift  and  agrees  to  increase  it  five,  ten  or  twenty  fold  if  he  takes 
another  wife.  The  propertv  is  settled  on  the  children  in  the  name  of  the 
eldest  son.  {Revillout,  pp.  1034,  1039,  ff.)  Re\iUout  recognizes  (p.  1096) 
that  the  interests  of  the  children  were  the  prime  object  of  the  settlement, 
and  if  so  the  contract  merely  enforces  by  agreement  what  would  have 
occurred  automatically  under  a  joint  family  sj'stem  with  maternal  kin- 
ship. The  daughter  inheriting  property  from  her  parent  marries.  The 
husband  becomes  its  administrator,  but  not  its  owner.  It  passes  auto- 
maticallj'  to  their  children  with  the  eldest  as  administrator.  If  the  wife 
dismissed  the  husband  (as  under  this  system  she  often  may)  she  would  of 
course  retain  the  family  property.  Now  if  this  system  was  breaking  down 
in  the  age  of  Bocchoris  in  favour  of  individual  ow-nership,  it  would  be 
necessary  to  secirre  the  passage  of  the  propertj'  to  the  w^oman's  children 
by  a  compact.  This  was  done  by  making  it  over  to  the  nominal  owner- 
ship (and  perhaps  real  administration)  of  the  husband,  w-ho  agreed  that 
it  should  return  to  the  wife  in  case  of  divorce,  and  in  any  case  pass  to  their 
children.  Thus  the  old  system  of  inheritance  w^ould  be  maintained  by  the 
new  method  of  contract.  It  is,  of  course,  possible  that  where  the  woman 
had  the  man  in  her  powder,  like  the  witch-wife  in  the  story  of  Setne,  she 
would  use  this  form  for  getting  hold  of  all  liis  w^orldly  goods.  The  Theban 
form  of  contract  is  less  archaic.  Here  there  is  a  ]\Iorgen-gabe  to  the 
bride,  but  only  an  earnest  of  it  is  actually  paid  over.  The  remainder  is 
to  be  given  if  the  husband  is  unfaithful,  and  so  acts  as  a  guarantee  for  her. 


308  PERSONS  [Part  II. 

Polygamy  appears  to  have  been  allowed  from  the  first,  though  as 
in  almost  all  polygamous  countries  it  was  for  the  most  part  con- 
fined to  the  rich.  The  king  has  a  large  harem  in  which  there  is 
one  chief  wife,  the  "great  spouse,"  who  accompanies  the  king  in 
his  public  acts  and  particularly  in  his  religious  worship,  who  is 
alwaj's  a  princess  of  the  royal  blood,  and  probably  a  sister  of  the 
king,  who  has  her  own  household  and  her  own  servants,  and 
might  on  the  king's  death  obtain  practical  royal  authority  as 
regent.^  Under  her  there  are  secondary  wives  taking  rank  accord- 
ing to  their  birth,  and  being  probably  more  or  less  secluded,  and 
beneath  them  again  are  a  troop  of  concubines  and  foreign  slaves. 
The  court  of  Pharaoh  was  imitated  by  the  feudal  chief  of  every 
nome,  who  also  had  his  harem,  "  where  the  legitimate  wife  —  often 
a  princess  of  solar  rank  —  played  the  role  of  Queen  surrounded  by 
concubines,  dancers,  and  slaves."  ^  Thus  a  frank  development 
of  polygamy,  though  apparently  in  that  form  in  which  the  position 
of  the  chief  wife  is  clearly  distinguished,  was  practised  by  the 
highest  classes  of  Egypt,  and  it  is  seldom,  if  ever,  that  polygamy 
on  a  large  scale  goes  much  further.  It  would  seem,  however,  that 
the  position  of  women  gradually  improved  throughout  Egyptian 
history,  and  that  in  practice  polygamy  died  out.  In  the  Middle 
Kingdom  it  appears  frequent  among  the  middle  classes,  but  by 
B.C.  1100  it  had  become  rare,  and  later  on  it  died  away  except 
among  the  higher  officials.^  While  it  was  still  clearly  legal  in  the 
New  Kingdom  and  in  the  Classical  Period  the  contracts  enable 
us  to  understand  how  through  the  opposition  of  the  women  it 
would  gradually  disappear.  But  meanwhile  the  whole  attitude 
to  women  must  have  improved.  In  the  early  dynasties  the  king 
boasts  of  having  carried  off  the  wives  of  other  men,  and  these 
outrages  are  alleged  in  proof  of  his  truly  royal  nature.''  Now 
though  in  theory  Pharaoh  may  have  remained  the  absolute 
master  of  all  his  subjects  and  their  wives,  yet  rape  and  adultery 
did  not  continue  to  be  a  matter  for  boasting.  For  the  ordinary 
man,  at  any  rate,  they  were  recognized  as  sins  from  which  he  had 
to  clear  himself  in  the  next  world.^ 

1  Maspero,  "Dawn  of  Civilization,"  270,  271  ff.  ^  Qp.  cit.,  298. 

^  Thus  as  late  as  b.c.  40  a  high  priest,  recounting  the  advantages  which 
he  had  enjoyed  in  this  Hfe,  saj's  :  "I  had  beautiful  concubines."  {W. 
Max  Muller,  p.  5,  note  11.) 

*  Maspero,  "Recueil  de  Travaux,"  vol.  iv. ;  "Pyramide  du  roi  Ounas," 
p.  76. 

^  Thus,  in  the  Negative  Confession  in  the  "Book  of  the  Dead"  of  the 
18th  Dynasty,  violations  of  the  marriage  law  figure  as  mortal  sins.  The 
Negative    Confession    {Flinders    Petrie,    "Religion    and    Conscience   in 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER   CIVILIZATION  '    309 

On  the  relations  of  husband  and  wife  the  moralists  of  the  ^Middle 
and  New  Kingdom  throw  some  light.  They  very  properly  enjoin 
kind  treatment  of  the  wife  upon  the  husband.  To  this  effect 
run  the  precepts  of  Ptah  Hotep  :  "If  thou  art  successful  and  hast 
furnished  thy  house  and  lovest  the  wife  of  thy  bosom,  then  fill 
her  stomach,  and  clothe  her  back.  The  medicine  for  her  body  is 
oil.  ]\Iake  glad  her  heart  during  the  time  that  thou  hast.  She 
is  a  field  profitable  to  its  owner."  ^  These  are  most  proper  senti- 
ments, blended,  as  they  are,  with  that  simple  worldy  wisdom  and 
gentle  appeal  to  self-interest  which  characterize  the  utterances  of 
the  excellent  Ptah  Hotep,  first  of  all  the  race  of  platitudinarians ; 
but  excellent  as  the  sentiment  is,  it  does  not  imply  the  subjection 
of  the  husband  to  the  wife,  but  rather  the  contrary.^  The  maxims 
of  Ani,  some  six  dynasties  later,  are  a  little  more  detailed  :  "  Do 
not  treat  rudely  a  woman  in  her  house  when  you  know  her  per- 
fectly ;  do  not  say  to  her,  '  Where  is  that  ?  bring  it  to  us,'  when 
she  has  set  it  perfectly  in  its  place  which  your  eye  sees,  and  when 
you  are  silent  you  know  her  qualities.  It  is  a  joy  that  your  hand 
should  be  with  her.  The  man  who  is  firm  of  heart  is  quickly  master 
in  his  house."  ^     All  this  is  in  the  approved  Oriental  style,  and  so 

Ancient  Egj'pt,"  pp.  134,  135)  consists  of  a  long  series  of  offences  which 
the  dead  man  repudiates.  The  19th  reads:  "I  have  not  committed 
adultery  with,  another  man's  wife."  The  next  is  by  some  translated: 
"I  have  not  been  impure,"  which  would  look  like  a  general  repudiation 
of  unchastity  rare  in  early  ethics.  But  Miiller  (p.  17)  renders  it:  "I 
have  not  stimulated  sensuality,"  i.e.  by  drugs.  In  the  earlier  lists  of 
repudiations  (there  are  two  in  the  "Book  of  the  Dead")  is  one  translated 
by  Mr.  Budge  ("Book  of  the  Dead,"  ii.  p.  361)  :  "I  have  not  committed 
fornication,"  but  other  renderings  seem  to  limit  the  offence  to  cases  where 
it  was  committed  in  a  sacred  place.  {Griffith,  p.  5321.)  As  to  women 
Miiller  (p.  7)  thinks  that  pre-nuptial  chastity  was  little  regarded,  and  this 
would  certainly  fall  in  with  the  abnormal  permission  of  brother  and  sister 
marriage.  He  adds  that  in  the  marriage  contract  no  stress  was  laid  on 
virginity,  and  that,  at  least  in  Roman  times,  there  was  no  prejudice  against 
bastards.  The  unspeakable  corruption  of  the  Egyptian  Pantheon  to 
which  he  refers  would  reflect  the  manners  of  the  earliest  period. 

1  Flinders  Petrie,  p.  132.  F.  L.  Griffith,  "The  World's  Literature," 
p.  5335. 

2  There  is  a  little  more  point  in  a  fiu-ther  maxim  of  Ptah  Hotep,  "If 
thou  makest  a  woman  ashamed,  wanton  of  heart,  whom  her  fellow-towns- 
people know  to  be  under  two  laws  (explained  by  Mr.  Griffith  as  meaning 
in  an  ambiguous  position),  be  kind  to  her  a  season;  send  her  not  away, 
let  her  have  food  to  eat.  The  wantonness  of  her  heart  appreciateth 
guidance."  {Griffith,  "World's  Literature,"  p.  .5337.)  Apparently  this 
is  a  recommendation,  couched,  it  must  be  admitted,  in  mild  terms,  to  a 
man  who  has  seduced  a  woman  to  treat  her  with  consideration.  There 
is  clearly  no  question  of  any  obligation. 

^TheBoulak  PapjTus,  in  Amelineau,  "  La  Morale  Egyptienne,"  p.  188. 
Brugsch  translates  the  first  words:  "Do  not  strike  your  ^\^fe."  With 
the  above  compare  the  Ptolemaic  precept,  "May  it  not  happen  to 
thee  to  maltreat  thy  wife  whose  strength  is  less  than  thine,  but  may  she 
find  in  thee  a  protector."      {Flinders  Petrie,  p.   133.)     We  have  also  the 


310  PERSONS  [Part  II. 

also  is  Ani's  recommendation  to  the  wife  :  "  ^Miat  does  one  speak 
of  day  by  day  ?  Let  the  professions  speak  of  their  duties,  the  wife 
of  her  husband,  and  every  man  about  his  business."  ^ 

In  what  sense,  then,  was  the  wife  called  "  mistress  of  the  house"  ? 
Possibly  this  was  merely  the  title  of  the  legitimate  wife  as  opposed 
to  the  concubines.  Possibly  the  true  explanation  is  that  advanced 
by  ]\Iaspero,"  that,  as  in  some  contemporary  tribes  of  Northern 
Africa,  the  practice  of  polygamy  took  the  form  that  each  wife  had 
her  own  house  in  which  she  was  mistess,  and  "  where  she  performed 
all  a  woman's  duties,  feeding  the  fire,  grinding  the  corn,  occupying 
herself  in  cooking  and  weaving,  making  cloth  and  perfumes,  nursing 
and  teaching  her  children.  \Mien  her  husband  visited  her,  he  was 
a  guest  whom  she  received  on  an  equal  footing.  It  appears  that 
at  the  outset  these  various  wives  were  placed  under  the  authority 
of  an  older  woman,  whom  the}'  looked  on  as  their  mother,  and  who 
defended  their  rights  and  interests  against  their  master,  but  this 
custom  gradually  disappeared,  and  in  historic  times  we  read  of  it  as 
existing  only  in  the  families  of  the  gods."  ^ 

With  this  system  probably  survivals  of  primitive  mother-right 
were  conjoined.  Descent  was  reckoned  through  the  mother  down 
to  late  times,  and  guardianship  was  exercised  by  the  mother's 
brother.'^  That  being  so,  it  is  intelligible  that  the  family  property 
should  pass  through  the  female  and  be  retained  by  her  in  case 
of  divorce.     Honour  to  the  mother  is  strongly  insisted  on. 

"Thou  shalt  never  forget  thy  mother,  and  what  she  has  done  for  thee, 
that  she  bore  thee,  and  nurtured  thee  in  all  ways.     Wert  thou  to  forget 


lament  of  a  widower  who  is  persecuted  by  his  wife's  ghost,  and  who  points 
out  that  he  never  left  her  when  he  obtained  promotion,  but  shared  every- 
thing "^^'ith  her,  and  never  acted  the  master.  {Revillout,  p.  984.)  Tins 
implies  that  he  might  have  done  so.  On  the  other  hand,  it  points  to  an- 
other possible  source  of  respect  for  women,  the  fear  of  the  ghost  or  of  their 
magic  power.  Tliis  last  was  strongly  felt.  {Maspero,  "Dawn  of  Civi- 
lization," p.  271.) 

1  "Maxims  of  Ani,"  §  30.  Amelineau,  "La  Morale  Egyptienne,"  113. 
It  should  be  added  that  the  husband  could  apparently  put  the  unfaitMul 
wife  to  death.  In  the  story  of  the  "Two  Brothers "  it  is  narrated  without 
comment,  and  rather  as  a  matter  of  course,  that  the  husband  slew  his  wafe 
and  cast  her  to  the  dogs.  {Griffith,  "World's  Literatiu-e,"  5257.)  Accord- 
ing to  Diodorus,  in  cases  of  adultery,  the  paramour  was  punished  -with 
lOOO  blows,  the  Avife  by  haA-ing  her  nose  cut  off.      (I.  78.  4.) 

-Maspero,  "Dawn  of  Civilization,"  p.  51  ff. 

^  The  same  practice  is  found  among  Columbian  tribes  where  the  hus- 
band goes  to  live  in  the  wife's  tribe.  She  takes  charge  of  the  house  and 
the  pro\-isions,  and  there  may  be  several  A\ives,  each  wath  her  separate 
fire.  (Starcke,  "The  Primitive  Family,"  p.  34.)  The  contracts  of  the 
classical  period  appear  to  contemplate  the  separate  life  of  the  parties, 
pursuing  their  several  avocations,  and  the  husband  agreeing  to  allow  so 
much  for  his  wife's  maintenance. 

*  W.  Max  Miiller,  "  Liebespoesie,"  p.  G. 


Chap.  XV.]      AVOMEN   AND   MARRIAGE    UNDER    CIVILIZATION  311 

her  then  she  might  blame  thee,  hfting  up  her  arms  unto  God,  and  He 
would  hearken  unto  her  complaint.  For  she  carried  thee  long  beneath 
her  heart  as  a  heavy  burden,  and  after  thy  months  were  accomplished  she 
bore  thee.  Three  long  years  she  carried  thee  upon  her  shoulder  and  gave 
thee  her  breast  to  thy  mouth.  She  nurtured  thee  nor  knew  offence  for 
thy  uncleanness.  And  when  thou  didst  enter  school  and  wast  instructed 
in  the  "^vTitings,  daily  she  stood  by  the  master  with  bread  and  beer  from 
the  house."  ^ 

Thus  it  is  very  possible  that  the  preservation  of  relics  of  mother- 
right  was  among  the  forces  tending  to  the  better  condition  of 
women  in  Egypt.  These  were  augmented  towards  the  close  of 
the  independent  history  of  Egypt  by  the  rise  of  free  contract  and 
the  important  part  taken  by  women  in  industrial  and  commercial 
life.  In  these  relations  and  in  social  intercourse  generally  it  is  al- 
lowed on  all  hands  that  their  position  was  remarkably  free.  Little 
restraint  was  placed  on  their  intercourse  with  men,  they  appear 
on  the  monuments  eating  and  drinking  freely  —  sometimes  too 
freely  —  in  masculine  company,  and  they  surprised  the  Greek 
travellers  by  going  out  without  restraint  to  work  at  their  trade  or 
manual  labour  while  the  men  often  worked  at  home.-  Of  this 
position  women  in  the  commercial  and  propertied  classes  availed 
themselves  to  improve  their  condition  as  wives.  But  apart  from 
marriage  contracts  which  were  perhaps  restricted  to  a  limited  class 
for  a  limited  period,  the  position  of  the  Egyptian  woman  was 
probably,  save  for  the  remainders  of  mother-right,  much  what  it 
has  been  elsewhere  in  the  East  —  subject  to  her  guardian's  choice 

1  From  the  Boulak  PapjTUs,  translated  by  Griffith,  op.  cit.,  p.  5340, 
from  the  German  of  Professor  Erman. 

^  W.  Max  Mailer,  loc.  cit.,  points  out  that  this  freedom  would  not 
apply  to  the  bondwomen  of  the  peasantry,  who  were  under  the  arbitrary' 
power  of  royal  or  priestly  officials,  and  wove  for  them  shut  up  in  a  work- 
house. Here,  however,  we  touch  the  general  question  of  slavery  rather 
than  the  special  position  of  women.  It  is  more  to  the  point,  that  to  have 
refrained  from  pressing  a  widow  remained  a  matter  for  boasting,  and  that 
education  in  reading  and  writing  was  not  often  extended  to  girls.  It  is 
perhaps  going  a  little  too  far  to  saj'  with  this  WTiter  that  no  ancient  or 
foreign  people,  except  those  of  New  Zealand,  have  given  women  so  high 
a  legal  position.  The  attitude  to  women  in  Egyptian  literature  is  not 
particularly  respectful.  Often  she  is  represented  as  the  temptress,  for 
instance  in  the  Boulak  Pap\TUs. 

"Keep  thyself  from  the  strange  woman  who  is  not  known  in  her  city. 
Look  not  upon  her  when  she  cometh  and  know  her  not.  She  is  like  a 
whirlpool  in  deep  w^aters,  the  whirling  vortex  of  w^hich  is  not  knowm. 
The  woman  whose  husband  is  afar  writeth  unto  thee  daily.  When  none 
is  there  to  see  she  standeth  up  and  spreadeth  her  snare.  Sin  unto  death 
is  it  to  hearken  thereto."  {Griffith's  tr.  following  Erman,  "World's  Lit- 
erature," p.  5340.) 

The  general  tendency  of  the  passage,  which  recalls  the  well-known 
chapter  in  Proverbs,  is  plain  enough,  but  whether  the  w^arning  is  prin- 
cipally  directed   against   the  harlot    or   the  adulteress    is    not    wholly 


312  •  PERSONS  [Part  II. 

of  a  husband/  liable  to  be  slain  for  unfaithfulness,  subject  to  di- 
vorce at  pleasure,  and  to  have  other  wives  or  concubines  associated 
with  her.  Out  of  this  condition  the  women  of  Egypt  at  the 
close  of  its  independent  civilization  were  raising  themselves  by 
the  marriage  contract,  and  one  class  had  so  far  succeeded  as  to 
achieve  a  position  equal  to  that  of  the  Roman  matron  at  a  later 
day. 

3.  Both  in  Egypt  and  Babylonia  the  position  of  women  was  in 
some  respects  better  than  our  traditional  conception  of  the  Oriental 
woman  would  lead  us  to  expect.  In  other  cases  that  conception 
accords  only  too  closely  with  the  facts.  Each  civilization  has  had 
its  own  peculiarities,  but  they  have  been  variations  upon  one 
type.  In  India  tradition  starts  with  the  heroic  age  of  the  Vedas, 
in  which  the  paternal  power  is  already  full}^  developed.  The 
father  is  master  and  indeed  owner  of  the  family;  wife,  sons, 
daughters  and  slaves  have  no  property  of  their  own,  but  are 
rather  his  property.  On  his  death,  his  place  is  taken  by  the 
eldest  son,  into  whose  tutelage  the  widow  passes.  The  daughter 
might  be  sold  to  an  intending  husband,^  and  it  is  not  probable 
that  her  consent  was  a  material  condition.^  The  widow  passed 
to  her  husband's  brother  until  a  son  was  born  :  she  did  not  in  this 
age  follow  her  husband  to  the  grave,  though  the  funeral  cere- 
mony strongly  suggests  the  previous  existence  of  such  a  custom.^ 
Finally  the  Vedas  contain  distinct  traces  of  polygamy,  though  it 
was  doubtless  an  exception.^  Thus  Indian  family  life  begins  with 
a  typical  Patriarchate.     To  this  system  a  religious  turn  was  given 

1  In  the  12th  dynasty  women  were  definitely  part  of  the  family  prop- 
erty, a  man's  widow  being  counted  among  the  possessions  inherited  by 
the  son.  {Revillout,  "Precis  du  Droit  figyptien,"  p.  990.)  Here  there 
was  apparently  a  decided  change  by  the  time  of  Bocchoris,  a  change 
which  naturally  accompanies  the  break-up  of  the  joint  family. 

*  The  purchase  of  brides  is  mentioned  in  the  Epic  Poems.  Thus 
Bhishma  purchased  the  daughter  of  the  Prince  of  Madras  for  Pandu, 
with  gold  and  precious  stones.  {Duncker,  "History  of  Antiquity," 
vol.  iv.  pp.  255-266.)  Capture  was  probably  an  alternative  to  pur- 
chase. I.e. 

^  Muir,  "Sanscrit  Texts,"  v.  459,  quotes  a  passage  from  the  Vedas, 
which  suggests  that  some  freedom  of  choice  was  exercised  by  women  under 
favourable  conditions.  "Happy  is  the  female  that  is  handsome.  She 
herself  loves  (or  chooses)  her  friend  among  the  people."  In  the  Maha- 
bharata  the  King's  daughters  appear  to  choose  their  husbands,  but  this  is 
a  prerogative  of  Royalty. 

*  When  the  widow  has  led  her  husband  to  the  place  of  burial,  she  is 
exhorted  to  "elevate  herself  to  the  world  of  life,"  for  her  marriage  is  at  an 
end.      {Duncker,  op.  cit.,  iv.  511.) 

*  In  one  hymn  the  poet  prays  that  Pushan  will  protect  him  and  provide 
him  with  a  supply  of  damsels.     {Muir,  v.  457,  461.) 


I 


Chap.  XV.]      WOMEN   AND   MARRIAGE   UNDER    CIVILIZATION  313 

by  the  Brahman  law.  In  some  respects  the  Brahmans  endeavour 
to  purify  the  marriage  relationship  and  to  provide  for  the  protection 
of  the  wife.  This  appears  especially  in  the  attempt  to  prohibit 
marriage  by  purchase.  This  form  of  marriage  is  recognized,  but 
figures  along  with  marriage  by  capture  as  one  of  the  four  blamable 
kinds,  and  "no  father  who  knows  the  law  must  take  even  the 
smallest  gratuity  for  his  daughter."  He  that  does  so  is  "  a  seller  of 
his  offspring,"  ^  Purchase  is  reduced  to  the  form  of  a  fee  given  to 
the  Brahman  for  the  fulfilment  of  the  sacred  law,  and  this  fee  is 
not  to  be  appropriated  by  the  relatives  themselves.  Yet  notwith- 
standing Manu's  discouragement  of  the  practice,  marriage  by 
purchase  persisted  in  a  modified  form,  the  final  compromise  being 
that  the  present  given  by  the  suitor  was  assigned  to  the  benefit  of 
the  bride  and  became  her  dowry,  passing  back  to  her  own  family 
on  her  death.  The  barbaric  form  of  marriage  by  capture  or  abduc- 
tion, which  is  morally  condemned  by  IManu  but  legally  sanctioned 
for  the  Kshatriya  caste,  became  obsolete,  being  forbidden  in 
Narada's  code,  and  the  two  forms  of  marriage  which  persist  in 

1  Manu's  eight  forms  of  marriage  and  his  comments  on  them  are  full  of 
instruction  for  the  transition  from  barbaric  to  ci\dhzed  marriage  laws. 
The  gift  of  a  daughter,  after  decldng  her,  to  a  man  learned  in  the  Veda  and 
of  good  conduct  ...  is  called  the  Brahma  rite.  The  gift  of  a  daughter 
who  has  been  decked  -wTth  ornaments  to  a  priest  .  .  .  they  call  the 
Daiva  rite.  When  (the  father)  gives  away  his  daughter  according  to  the 
rule  after  recei\'ing  from  the  bridegi'oom,  for  (the  fulfilment  of)  the  sacred 
law,  a  cow  and  a  bull  or  two  pairs,  that  is  named  the  Arsha  rite.  The 
gift  of  a  daughter  (by  her  father)  after  he  has  addressed  (the  couple) 
with  the  text,  "May  fioth  of  you  perform  together  your  duties,"  ...  is 
called  .  .  .  the  Prdgapatya  rite.  When  (the  bridegroom)  receives  a 
maiden  after  ha-ving  given  as  much  wealth  as  he  can  afford,  to  the  kins- 
men and  to  the  bride  herself,  according  to  his  own  -will,  that  is  called  the 
Asura  rite.  The  voluntary  union  of  a  maiden  and  her  lover  one  must 
know  (to  be)  the  Gandharva  rite,  which  springs  from  desire,  and  has 
sexual  intercourse  for  its  purpose.  The  forcible  abduction  of  a  maiden 
from  her  home,  while  she  cries  out  and  weeps,  after  (her  kinsmen)  have 
been  slain  or  wounded  and  (their  houses)  broken  open,  is  called  the 
Rakshasa  rite.  When  (a  man)  by  stealth  seduces  a  girl  who  is  sleeping, 
intoxicated,  or  disordered  in  intellect,  that  is  the  eighth,  the  most  base  and 
sinful  rite  of  the  Pisakas.  {Manu,  iii.  27-34.)  Of  these,  the  first  four  are 
allowed  to  Bra^hmans.  They  are  all  in  effect  religious  marriages,  the  gift 
in  the  third  or  Arsha  form  being  of  a  ceremonial  character,  as  it  is  to  be  "for 
the  fulfilment  of  the  sacred  law,"  not  a  price  for  the  daughter.  A  variant 
appears  in  the  code  of  Apastamba  (11.,  vi.  12,  13,  Maytie,  p.  82),  wherein 
a  gift  of  value  was  made  to  the  bride's  parents,  but  returned  by  them. 
The  four  blamable  rites  are  purchase,  captm-e,  voluntary'  union,  and 
treacherous  seduction.  Of  these,  the  two  first,  as  we  have  seen,  are  al- 
lowed to  the  warrior  caste.  The  fifth  and  eighth,  the  law  book  of  Baud- 
dhayana  allows  to  Vaisyas  and  Sudras,  since  they  "are  not  particular 
aboiit  their  ^vives."  {Baud.,  I.,  ii.  13,  14.)  These  are  in  the  main  relics 
of  barbarism,  yet  a  higher  conception  appears  when  Bauddhayana  re- 
marks that  "some  recommend  the  Gandharva  rite  (i.e.  voluntary  union) 
for  all  castes,  because  it  is  based  on  mutual  affection."  (lb.)  But  this 
germ  of  a  true  marriage  by  mutual  consent  was  not  allowed  to  fructify. 


314  PERSONS  [Part  II. 

India  to  this  day  are  the  Brahma,  the  gift  of  a  daughter  decked 
and  honoured  with  jewels  to  a  man  learned  in  the  Veda  whom  the 
father  himself  invites,  and  the  Asura,  or  purchase  in  the  modified 
form  described.^ 

Only  in  one  case,  moreover,  does  Manu  recognize  the  free-will 
of  the  maiden  in  the  matter  of  her  own  marriage.  If  her  father 
fails  to  provide  her  with  a  husband  within  three  years  of  her 
attaining  maturity  she  may  marry  whom  she  will.-  In  all  other 
cases  her  guardian  disposes  of  her  hand.  The  woman  who  is 
thus  passed  from  the  absolute  control  of  her  father  into  the  absolute 
control  of  her  husband  must  honour,  obey  and  merge  herself  in 
him.  " Though  destitute  of  virtue,  or  seeking  pleasure  (elsewhere), 
or  devoid  of  good  qualities,  (yet)  a  husband  must  be  constantly 
worshipped  as  a  god  by  a  faithful  wife."  ^  "She  must  always 
be  cheerful,  clever  in  (the  management  of  her)  household  affairs, 
careful  in  cleaning  her  utensils,  and  economical  in  expenditure."  ■* 
On  his  side  the  husband  is  commanded  to  show  her  respect. 
"Women  must  be  honoured  and  adorned  by  their  fathers, 
brothers,  husbands,  and  brothers-in-law,  who  desire  (their  own) 
welfare."  ^  He  is  to  be  faithful  to  her,  "being  constantly  satisfied 
with  her  alone."  Her  son  is  even  to  respect  her  more  than  his 
father.  "The  teacher  is  ten  times  more  venerable  than  a  sub- 
teacher,  the  father  a  hundred  times  more  than  the  teacher,  but 
the  mother  a  thousand  times  more  than  the  father."  ^  And  so 
Vasishtha  says,  "A  father  who  has  committed  a  crime  causing 
loss  of  caste  must  be  cut  off.  But  a  mother  does  not  become  an 
outcast  for  her  son."  "^  But  though  respected  if  virtuous,  she  is 
to  be  chastised  if  the  husband  thinks  her  otherwise.  The  chastise- 
ment, however,  is  strictly  limited.  "A  wife,  a  son,  a  slave,  a  pupil, 
and  a  younger  brother  of  the  full  blood,  who  have  committed 
faults,  may  be  beaten  with  a  rope  or  split  bamboo,  but  on  the  back 
part  of  the  body  (only) ,  never  on  a  noble  part ;  he  who  strikes 
them  otherwise  will  incur  the  same  guilt  as  a  thief."  ^  Here,  as 
elsewhere,  fluctuations  of  opinion  show  through  Manu's  text.  In 
one  place  we  read,  "Day  and  night  women  must  be  kept  in  de- 
pendence by  the  males  of  their  families,"  ^  yet  a  few  sections  on  the 
appeal  is  to  women  themselves:  "Women  confined  in  the  house 
under  trustworthy  and  obedient  servants  are  not  (well)  guarded ; 
but  those  who  of  their  own  accord  keep  guard  over  themselves 

1  /.  D.  Mayne,  "Hindu  Law  and  Usage,"  pp.  79-85. 

2  Manu,  ix.  90  ff.  '  Ibid.,  v.  154.  *  Ibid.,  v.  150. 
s  Ibid.,  iii.  55.                          « Ibid.,  ii.  145. 

^  Vasishtha,  xiii.  47,  48.  »  Mann,  viii.  299,  300.       » Ibid.,  ix.  2. 


1 


Chap.  XV.]      WOMEN    AND   MARRIAGE   UNDER   CIVILIZATION  315 

are  well  guarded."  ^  But  this  higher  note  is  seldom  struck.  The 
Brahmans  are  far  too  much  impressed  with  the  evil  disposition  of 
women,-  and  the  husband  is  recommended  to  keep  his  wife  well 
emplo}'ed  about  the  house  keeping  things  clean  and  preparing 
his  food,  as  an  expedient  for  guarding  her. 

On  the  strict  theory  of  INIanu  a  wife  could  have  no  property. 
In  this  respect  she  is  placed  on  one  footing  with  a  son  and  a  slave.^ 
The  wife  could  not  leave  her  husband  under  any  circumstances, 
but  he  might  take  other  wives  and  might  "supersede"  rather  than 
divorce  her  if  she  "drink  spirituous  liquor,  is  of  bad  conduct,  re- 
bellious, diseased,  mischievous  or  wasteful."  Further:  "A 
barren  wife  may  be  superseded  in  the  eighth  year,  she  whose 
children  all  die  in  the  tenth,  she  who  bears  only  daughters  in 
the  eleventh,  but  she  who  is  quarrelsome  without  delay."  "But 
a  sick  wife  who  is  kind  to  her  husband  and  virtuous  in  her  con- 
duct, may  be  superseded  only  with  her  own  consent  and  must  never 
be  disgraced."  ^  There  are  indeed  traces  in  the  text  of  INIanu, 
on  the  one  hand,  of  a  custom  allowing  deserted  wives  as  well  as 
widows  to  marry  again,  and,  on  the  other,  of  an  idealistic  attempt 
to  establish  indissoluble  monogamous  marriage.  But  these  remain 
as  traces  only.  AYhat  the  Brahmans  actually  succeeded  in  doing 
was  to  prevent  the  re-marriage  of  women  even  after  the  death 
of  their  husbands,  while  men  obtained  the  right  to  take  as  many 
wives  as  they  pleased,  though  they  might  not  dismiss  any  existing 
wives  save  for  one  of  the  faults  enumerated.^    Such  having  been 

1  Manu,  ix.  12. 

2  When  creating  them,  Manu  allotted  to  women  (a  love  of  their)  bed, 
(of  their)  seat  and  (of)  ornament,  impm-e  desires,  wrath,  dishonesty, 
malice,  and  bad  conduct.  (Manu,  ix.  17,  and  see  the  whole  passage, 
13-18.) 

3  This,  however,  is  not  carried  out  consistently.     {Manu,  ix.  194.) 
*  Manu,  ix.  80-82. 

^  Manu,  always  liberal  in  inconsistencies,  is  more  than  usually  so  on 
this  point.  The  cause,  as  shown  by  J.  D.  Mayne,  is  clearly  mutilation  of 
the  text  in  the  interest  of  conflicting  views.  Thus  in  ix.  46,  47,  we  read  : 
"Neither  by  sale  nor  by  repudiation  is  a  ^\^fe  released  from  her  husband. 
.  .  .  Once  is  the  partition  (of  the  inheritance)  made,  (once  is)  a  maiden 
given  in  marriage,  etc."  From  this  it  is  clear  that  the  repudiated  wife 
could  not  re-marry.  Further  it  seems  that  the  attempt  was  ]3eing  made  to 
impose  monogamy  and  conjugal  fidelity  on  the  husband  as  well.  "Let 
mutual  fidelity  continue  unto  death,  this  may  be  considered  as  the  sum- 
mary of  the  highest  law  for  husband  and  wife."  (ix.  101.)  Connect  this 
with  V.  168.  "Ha\ing  thus,  at  the  funeral,  given  the  sacred  fires  to  his 
wife  who  dies  before  him,  he  may  marry  again,  and  again  kindle  the 
(fires)."  This  seems  to  imply  monogamy  with  mutual  fidelity  as  the 
ideal,  but  in  other  parts  a  plurality  of  wives  is  freely  contemplated,  and 
in  ix.  77-82,  the  dismissal  of  a  -wife  is  permitted  on  several  conditions  as 
shown  in  the  text.  Further  Mayne,  "Hindu  Law  and  Usage,"  p.  93, 
shows  conclusively  that  a  passage  has  been  omitted  before  ix.  76,  justify'- 


316  PERSONS  [Part  II. 

the  position  of  the  wife  during  the  husband's  Hfetime,  after  his 
death  she  must  remain  faithful  to  him,  "  she  must  not  even  mention 
the  name  of  another  man  after  her  husband  has  died."  ^  She  is 
now  under  the  tutelage  of  her  son,  for  a  woman  is  never  a  free 
agent.  "By  a  girl,  by  a  young  woman,  or  even  by  an  aged  one, 
nothing  must  be  done  independently,  even  in  her  own  house.  In 
childhood  a  female  must  be  subject  to  her  father,  in  youth  to  her 
husband,  when  her  lord  is  dead  to  her  sons ;  a  woman  must  never 
be  independent."  ^ 

The  chastity  of  women  was  to  be  preserved  by  their  seclusion, 
and  their  unfaithfulness  punished  by  their  husbands.  We  have 
seen  that  in  the  barbaric  world  the  infringement  of  chastity  is  re- 
garded mainly  as  an  offence  against  the  woman's  owner.  The 
influence  of  this  conception  is  still  apparent  in  the  Brahmanical 
codes,  which,  in  assigning  punishments  for  seduction  and  adultery, 
observe  a  marked  distinction  between  the  cases  where  the 
woman  is  properly  guarded  and  those  in  which  she  is  free  from 
proper  surveillance.^     The  same  conception  had  another  conse- 

ing  a  wife  in  marrying  again  after  desertion  for  a  period  of  years.  Thus 
we  trace  (1)  a  period  when  widows  and  deserted  wives  may  marry  again, 
(2)  an  attempt  to  establish  monogamy.  But  the  net  result  of  this  sacra- 
mental conception  of  marriage,  impinging  on  actual  law  and  usage,  was, 
in  the  Brahmanic  codes,  the  greatest  liberty  for  the  man,  and  the  most 
complete  bondage  for  the  wife. 

1  Manu,  V.  157.  On  the  other  hand,  not  only  is  suttee  not  mentioned 
by  Manu,  but  the  original  text  appears,  as  we  have  seen,  to  contemplate 
re-marriage.  (See  especially  ix.  175,  176.)  Among  the  Jats  of  the 
Punjab,  re-marriage  is  allowed  to  the  deserted  wife  and  to  the  widow ;  in 
Western  India,  it  is  allowed  to  the  lower  castes  if  the  husband  is  impo- 
tent, if  the  parties  are  continually  quarrelling,  or  if,  by  mutual  consent, 
the  husband  breaks  the  wife's  neck  ornament,  or  if  he  deserts  her  for 
twelve  years.  {J.  D.  Mayne,  op.  cit.,  94,  95.)  Polygamy,  on  the  other 
hand,  as  to  which  the  earlier  text  of  Manu  seems  to  have  wavered,  remains 
to  this  day  an  undoubted  right.  On  the  whole,  we  may  say  that  nowhere 
has  the  subjection  of  women  been  more  complete  than  in  India,  and  Mo- 
hammedan influence,  far  from  improving  matters,  has  only  furthered  the 
practice  of  seclusion. 

2  Manu,  V.  147,  148. 

3  For  a  scale  of  penalties  modifiable  according  as  the  woman  is  guarded 
or  not,  see  Manu,  viii.  374  ff. 

On  the  subject  of  legal  punishments  and  religious  penances  for  different 
forms  of  immorality,  Manu  is  quite  bewildering  in  his  divergencies  of 
statement,  and  the  case  is  made  worse  if  the  other  Brahmanist  law  books 
are  consulted.  Two  instances  may  suffice  to  illustrate  the  difficulty  of  ex- 
tracting a  consistent  view.  In  viii.  371,  the  king  is  to  cause  the  adulter- 
ess to  be  devoured  by  dogs.  But  in  xi.  177,  "an  exceedingly  corrupt 
wife"  is  merely  to  be  confined  to  one  apartment  and  to  perform  the 
penance  prescribed  for  males  in  the  case  of  adultery.  Probably  the 
explanation  is  that  the  first  passage  which  speaks  of  a  wife  "proud  of  the 
greatness  of  her  relatives"  lays  down  the  penalty  for  high  caste  women 
who  love  men  of  lower  caste.  This  is  explicitly  stated  in  the  correspond- 
ing passage  of  Gautama's  code  (xxiii.  14,  15).  But  there  is  nothing  in 
Manu  himself  to  clear  up  the  point.     Again,  in  xi.  59,  intercourse  with 


Chap.  XV.]      WOMEN   AND   MARKIAGE   UNDER   CIVILIZATION  317 

quence,  paradoxical  enough  in  our  eyes.  As  the  husband  was  the 
proprietor  of  the  wife,  he  was  also  the  owner  of  her  children, 
whether  they  were  his  children  after  the  flesh  or  not.  And  as 
children  were  a  desirable  acquisition  for  the  purposes  both  of  this 
world  and  the  next,  it  was  not  unusual  for  a  childless  husband  to 
compel  his  wife  to  bear  him  a  child  by  another  man.  In  the  IMaha- 
bharata  we  read  that  wives  who  refuse  such  a  duty  are  guilty  of  sin. 
It  was  through  a  similar  order  of  ideas  that  if  the  husband  died 
childless  his  brother^  was  appointed  to  raise  up  seed  to  him.  This, 
of  course,  was  for  religious  purposes  only.  The  son  of  the  ap- 
pointed lover,  on  the  other  hand,  was  the  son  for  this  world  as  well 
as  the  next.  But  with  the  progress  of  civilization  the  Niyoga,  as 
this  custom  was  called,  gradually  fell  into  discredit  and  made  way 
for  a  purer  conception  of  the  relations  of  husband  and  wife.  It 
deserves  mentioning  here  as  one  of  the  most  remarkable  paradoxes 
in  the  field  of  Comparative  Ethics  that  the  same  teaching  which 
insists  so  strongly  on  the  guarding  of  women  as  though  the  pres- 
ervation of  their  persons  for  the  benefit  of  their  owners  were  the 
sole  object  of  their  existence,  should  also  say  of  adultery  that  "men 
who  have  no  marital  property  in  women,  but  sow  their  seed  in 
the  soil  of  others,  benefit  the  owner  of  the  woman."  ^  But  the 
paradox  resolves  itself  into  this,  that  proprietary  right  rather  than 
personal  self-respect  and  love  is  deemed  the  basis  of  conjugal 
obligation.     Property  is  more  than  personality,  and  it  is  precisely 

unmarried  maidens  is  somewhat  strangely  classed  with  the  deadliest  of 
all  sins  —  violation  of  the  Guru's  (teacher's)  bed  —  but  in  §  62  it  is 
classed  among  minor  offences  causing  loss  of  caste. 

I  shall  not  attempt  to  thread  my  way  through  the  maze,  but  will  note 
a  few  salient  points  : 

(1)  Considering  the  low  position  of  women,  the  punishments  of  im- 
morality, where  no  caste  complication  is  involved,  seem  moderate.  It 
would  seem  as  though  but  little  responsibilitj'^  were  attached  to  the 
woman.  Thus  the  maiden  who  makes  advances  to  a  man  of  high  caste 
is  not  to  be  fined ;  only  if  he  is  of  lower  caste  is  she  to  be  confined  to  her 
house  (\-iii.  365). 

(2)  A  low  caste  seducer  suffered  corporal  punishment.  One  of  equal 
caste  had  to  pay  the  nuptial  fee  if  demanded  by  the  woman's  father. 

(3)  Adultery  and  fornication  appear  as  religious  offences  (xi.  59  seq.). 

(4)  The  husband's  right  to  kill  an  unfaithful  wife  is  substantially 
recognized  —  the  penance  required  being  only  to  gi^'e  a  leathern  bag,  a 
bow,  a  goat,  or  a  sheep,  according  to  her  caste.      {Manu,  xi.  139.) 

1  The  Le\irate  is  usuallj^  connected  -sWth  the  principle  that  the  widow 
belongs  to  her  husband's  family,  and  probably  this  was  its  historical  origin 
in  India.  But  inAIanu  it  rests  on  religious  considerations  and  is  reduced 
to  the  dimensions  necessary  for  religious  purposes.  The  brother  must 
only  cohabit  with  the  widow  so  far  as  is  necessary  for  the  purpose  of 
raising  up  seed  to  his  brother  {Matiu,  ix.  60),  and  the  whole  practice  is 
forbidden  in  the  passage  64-68,  which  contradicts  the  clauses  permitting 
the  Niyoga. 

^  Manu,  ix.  51. 


318  PERSONS  [Part  II. 

this  that  is  characteristic  of  Oriental  as  on  the  whole  of  primitive 
marriage. 

4.  Turning  from  India  to  China,  we  do  not  find  much  change 
in  the  position  of  the  woman.  The  arrangement  of  marriage 
is  in  the  hands  of  the  parents,  and  the  son  is  as  much  at  their 
disposal  as  the  daughter.^ 

"Young  people,"  says  the  Editor  of  the  She-King,"^  *'and 
especially  young  ladies,  have  nothing  to  do  with  the  business  of 
getting  married.  Their  parents  will  see  to  it.  They  have  to 
merely  wait  for  their  orders.  If  they  do  not  do  so,  but  rush  to 
marriage  on  the  impulse  of  their  own  desires  and  preferences, 
they  transgress  the  rules  of  heaven  and  violate  the  law  of  their 
lot."  The  marriage  is,  in  fact,  arranged  by  go-betweens  who  form 
a  kind  of  profession,  and  as  it  is  now,  so  was  it  perhaps  three 
thousand  years  ago  in  the  days  of  the  She-King? 

The  full  ceremony  of  marriage  is,  as  a  rule,  gone  through  with 
only  one  woman ;  bigamy  or  the  raising  of  a  concubine  to  the 
rank  of  wife  is  punished  by  ninety  blows  ^  (unless  in  certain  ex- 
ceptional cases),  but  there  are  secondary  wives  or  concubines 
who  owe  obedience  to  the  first  wife,  and  it  is  a  point  much  insisted 
on  in  the  classical  books  that  the  head  wife  should  show  no  jealousy 
of  her  inferiors.^ 

1  Chinese  travellers  note  relies  of  marriage  by  capture  in  the  ceremonial 
and  point  out  that  the  ideograph  for  slave  is  compounded  of  "woman" 
and  "hand,"  implying  that  the  woman  is  the  type  of  that  which,  in  the 
phrase  of  the  Koran,  "yoiu*  right  hand  possesses."  Further,  to  marry 
a  wife  is  written  "to  take  a  woman,"  while  to  marry  a  man  has  a  different 
symbol.  {Douglas,  "Society  in  China,"  202.)  In  this  connection  note 
that  the  imperial  editors,  writing  on  the  "She-King,"  Part  I.,  Bk.  i.  Ode  2, 
speak  of  a  strict  taboo  on  the  relation  of  husband  and  wife  in  antiquity. 
"Anciently  the  rules  to  be  observed  between  husband  and  wife  required 
the  greatest  circumspection.  They  did  not  speak  directly  to  each  other, 
but  employed  internuncios,  thus  showing  how  strictly  reserved  should 
be  intercourse  between  men  and  women,  and  preventing  all  disrespectful 
familiarity."      (Legge,  "The  She-King,"  Part  I.,  Bk.  i.  Ode  2,  p.  7,  note.) 

2  Bk.  iv.  Ode  7,  Stanza  3,  note. 

3  "How  do  we  proceed  in  taking  a  wife? 

Announcement  must  first  be  made  to  our  parents. 
Since  such  announcement  was  made, 
Why  do  you  still  indulge  her  desires?  .  .  . 
How  do  we  proceed  in  taking  a  wife? 
Without  a  go-between  it  cannot  be  done." 

"She-King,"  Bk.  viii.  Ode  6,  Sts.  3,  4. 

*  Fornication  is  punished  with  eighty  blows,  and  the  pander  is  liable 
to  seventy.  {Alabaster,  "Notes  and  Commentaries  on  Chinese  Criminal 
Law,"  p.  367.) 

5  Writing  of  the  "She-King,"  Dr.  Legge  says  :  "The  institution  of  the 
harem  is  very  prominent,  and  there  the  wife  appears  lovely  on  her  enter- 
ing into  it,  reigning  in  it  with  entire  devotion  to  her  husband's  happiness. 


Chap.  XV.]      WOMEN   AND   MARRIAGE   UNDER   CIVILIZATION  319 

The  Chinese  husband  Is  master  in  his  own  household,  the 
yatria  potestas  is  strongly  developed,  and  the  State  interferes 
inside  the  family  only  in  extreme  cases. ^  The  husband  may 
kill  his  wife  if  taken  in  adultery ;  -  he  may  strike  her  without 
wounding  her,^  whereas  she  receives  a  hundred  blows  for  striking 
him ;  ^  while  if,  for  abuse  of  his  parents,  he  so  punishes  her  as  to 
cause  her  death,  he  receives  a  hundred  blows.  He  may  sell  his 
wife,^  and  sometimes  does  so  in  times  of  famine,  he  may  divorce 
her  for  barrenness,  lasciviousness,  disregard  of  his  parents,  talka- 
tiveness, thievish  propensities,  envious  and  suspicious  temper, 
and  inveterate  infirmity.  She,  on  the  other  hand,  has  no  power 
of  divorcing  him,^  but  at  best  may  arrange  to  part  by  mutual 
consent.^ 

The  power  of  the  husband  does  not  end  with  the  dissolution  of 
marriage;  if  he  makes  formal  complaint  of  the  commission  of 
bigamy  by  his  wife,  she  is  strangled.  After  the  husband's  death 
the  widow  still  owes  him  a  duty.  There  is  no  definite  institution 
of  suttee,  but  contemporary  authorities  tell  us  that  the  suicide  of 
widows  is  frequent,  and  in  the  south  often  public,  and  turning 

free  from  all  jealousy  of  the  inferior  inmates,  in  the  most  friendly  spirit 
promoting  their  comfort  and  setting  them  an  example  of  frugality  and 
industry.  It  is  apparently  to  these  inferior  inmates  that  the  concluding 
verse  of  an  Ode  expressing  the  affectionate  devotion  of  a  wife,  alludes : 

"When  your  arrows  and  line  have  found  them, 
I  ^^^ll  dress  them  fitly  for  you  ... 
When  I  know  those  whose  acquaintance  you  wish, 
I  wiU  give  them  of  the  ornaments  of  my  girdle. 
When  I  know  those  with  whom  you  are  cordial, 
I  will  send  to  them  of  the  ornaments  of  my  girdle. 
When  I  know  those  whom  you  love, 
I  will  repay  their  friendship  from  the  ornaments  of  my  girdle." 

"She-King,"  Part  I.,  Bk.  vii.  Ode  8. 

1  Douglas,  78.  A  father  who  kills  his  son  without  cause  is  subject  to  a 
light  penalty.  If  he  kills  him  for  striking  or  abusing  his  parents,  he  goes 
free.  {Alabaster,  156.)  The  father  may  require  the  courts  to  order  the 
transportation  of  an  unruly  son  {ib.,  154),  and  a  child  may  be  sold  for 
good  cause.      {Ib.,  157.) 

2  But  it  must  be  done  on  the  spot.  Otherwise  he  is  liable  to  a  miti- 
gated penalty.      {Alabaster,  187,  188.) 

^  But  he  must  exercise  judgment  in  correcting  her.  "If  he  knocks  her 
brains  out  when  told  by  his  mother-in-law  to  give  her  a  w^hipping,  he  will 
be  responsible  for  the  murder."      {Ib.,  189.) 

*  Douglas,  81.  If  the  husband  kills  her  for  strilcing  him  or  his  parents, 
extenuating  circumstances  are  allowed.  For  killing  the  wife  without 
cause,  the  penalty  is  strangulation  subject  to  re\ision.  {Alabaster,  ISO.) 
For  killing  the  husband  it  is  decapitation,  a  severer  punishment  because 
it  affects  the  after-hfe.      {Ib.,  192.) 

^  By  practice,  not,  unless  in  exceptional  circumstances,  by  strict  law. 
If  she  commits  suicide  in  consequence,  he  is  liable  to  three  years'  transpor- 
tation.     {Alabaster,   189.) 

8  Unless  it  is  for  impotence.      {Ib.,  182.)  ^  Douglas,  71. 


320  PERSONS  [Part  II. 

back  to  the  classical  books,  we  find  the  widow  professing  life-long 
chastity  and  devotion  to  the  memory  of  the  departed.^  Hence 
it  is  intelligible  that  women  freciuently  prefer  a  nunnery  or  suicide 
to  marriage.  And  yet  the  love  of  home  and  yearning  for  absent 
wife  and  child  is,  we  are  told,  no  infrequent  theme  of  Chinese 
poetry.  Such  is  the  power  of  human  feeling  to  survive  all  laws 
and  institutions. 

The  position  of  Chinese  women  has  not  undergone  any  funda- 
mental change  Avithin  the  historical  period.  Perhaps  in  some 
respects  it  has  deteriorated.^    In  particular  the  binding  of  feet 

1  "It  floats  about,  that  boat  of  cypress  wood, 
There  in  the  middle  of  the  Ho, 

With  his  two  tufts  of  hair  falling  over  his  forehead, 
He  was  my  mate, 

And  I  swear  that  till  death  I  wall  have  no  other. 
O  mother,  O  Heaven, 
Why  will  you  not  understand  me? 

It  floats  about,  that  boat  of  cypress  wood, 

There  by  the  side  of  the  Ho, 

With  his  two  tufts  of  hair  falling  over  his  forehead, 

He  was  my  only  one, 

And  I  swear  that  till  death  I  will  not  do  the  evil  thing. 

O  mother,  O  Heaven, 

Why  Avill  you  not  understand  me?" 

"She-King,"  Part  I.,  Bk.  iv.  Ode  1. 

Cf.  Douglas,  216,  etc.  The  sacrifice  of  wives  at  the  death  of  the  em- 
peror was  abolished  by  Kanghksi  1661-1721.  {Douglas,  227.)  Human 
sacrifice  at  funerals  (cliiefly  of  women)  appears  intermittently  from  the 
first  recorded  case  (that  of  Wu,  ruler  of  Tsin,  b.c.  677,  when  sixty-si.x 
people  were  sacrificed)  to  the  present  time.  It  was  opposed  bj-  the  Con- 
fucians. In  the  eighteenth  century  suttee  was  on  the  increase,  and  to 
check  it  the  honours  conferred  on  the  suttee  women  revoked,  a.d.  1729. 
{De  Groat,  "Religious  Systems  of  China,"  ii.  721-807.)  De  Groot  con- 
siders it  incredible  that  the  case  of  Wu  should  really  have  been  the  first. 
Possibly  he  was  the  first  of  his  house  to  be  so  "honoured." 

2  The  "She-Iving"  describes  the  difference  of  attitude  to  the  infant 
son  and  daughter  in  terms  which  are  exactly  reproduced  to-day  : 

"Sons  shall  be  born  to  him ; 
They  wiU  be  put  to  sleep  on  couches ; 
They  will  be  clothed  in  robes  ; 
They  will  have  sceptres  to  play  with  ; 
Their  cry  will  be  loud. 

They  wail  be  (hereafter)  resplendent  with  red  knee  covers, 
The  (future)  king,  the  princes  of  the  land. 

Daughters  shall  be  born  to  him  ; 

They  will  be  put  to  sleep  on  the  ground ; 

They  Tvall  be  clothed  "with  "WTappers ; 

They  wiU  have  tiles  to  play  -nith. 

It  will  be  theirs  neither  to  do  wTong  nor  to  do  good. 

Only  about  the  spirits  and  the  food  will  they  have  to  think, 

And  to  cause  no  sorrow  to  their  parents." 

"She-King,"  Part  II.,  Bk.  iv.  Ode  5,  Sts.  8,  9. 

In  point  of  fact  the  lot  of  the  infant  daughter  was  often  much  worse. 
The  extent  of  infanticide  in  China  has  undoubtedly  been  exaggerated. 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER   CIVILIZATION  321 

has  grown  up  within  the  last  thousand  years,  a  mushroom  growth 
in  the  antiquity  of  China. ^  The  great  teachers,  though  personally 
married  to  one  wife,  and  having  no  concubines,  did  nothing  for 
the  amelioration  of  the  position  of  women.  Mencius,  indeed, 
proposed  to  divorce  his  wife  because  he  found  her  in  a  squatting 
position  on  the  floor  of  her  room,  and  was  only  restrained  by  his 
mother's  advice  from  doing  so.  This  same  mother  expressed  the 
whole  duty  of  Chinese  women  when  she  refused  to  be  consulted 
as  to  where  they  should  live.  She  said,  "It  does  not  belong  to 
a  woman  to  determine  anything  of  herself,  but  she  is  subject  to 
the  rule  of  the  three  obediences ;  when  young  she  has  to  obey  her 
parents,  when  married  her  husband,  and  when  a  widow  her  son." 

It  only  remains  to  add  that  where  men  keep  women  in  so  much 
subjection  they  generally  impute  to  them  a  double  dose  of  original 
sin,  and  the  She-King,  chiming  in  with  the  literature  of  the  Hebrews 
and  Hindoos,  says,  ''Disorder  does  not  come  down  from  heaven, 
it  is  produced  by  the  woman.  Those  from  whom  come  no  lessons, 
no  instritction,  are  women  and  eunuchs."  - 

5.  The  Hebrew  marriage  law  begins  when  we  first  come  across  it 
in  the  fully-developed  patriarchal  stage.  The  analogy  of  primitive 
Arabian  tribes  suggests  an  earlier  state  of  mother-right,  but  of 
this  there  are  in  the  Old  Testament  only  the  merest  traces.^ 
A  man  acquires  a  wife  by  purchase  or  by  service,  from  her  father 
or  her  nearest  male  relative.'*  In  either  case  she  passes  completely 
out  of  her  father's  family,  and  belongs  to  him  who  has  paid  for  her. 
"Is  there  yet  any  portion  or  inheritance  for  us  in  our  father's 
house?"  say  Leah  and  Rachel.  "Are  we  not  counted  of  him 
strangers?  for  he  hath  sold  us  and  hath  also  quite  devoured  the 
price  paid  for  us."  ^ 

This  very  next  summary  of  the  theory  of  marriage  by  service 
has  already  been  referred  to.     But  the  marriage  affairs  of  Jacob 

The  killing  even  of  illegitimate  cliildren  after,  though  not  at  birth,  is  an 
offence,  though  but  lightly  punished.  {Alabaster,  170.)  The  practice, 
however,  is  frequent  in  many  districts,  and  it  is  the  daughter  who  is  ordi- 
narily the  sufferer. 

1  Yet  there  is  an  objection  to  the  bamboo  as  a  penalty  for  women,  and 
if  subjected  to  it,  thej-  are  not  stripped  as  they  were  in  England  to  the 
beginning  of  the  nineteenth  century.      {Alabaster,  op.  cit.,  107.) 

2  "She-King,"  Part  III.,  Bk.  iii.'Ode  10,  St.  3. 

3  It  is  clear  that  Sara  was  really  Abraham's  half-sister,  and  his  mar- 
riage to  his  father's  daughter  would  be  in  accordance  ^\ith  primitive  cus- 
tom under  mother-right. 

*  Laban  apparently  gives  away  Rebecca,  his  sister,  and  both  he  and  her 
mother  receive  precious  things  for  her.  At  the  same  time  Rebecca's 
own  wishes  clearlj^  are  considered. 

^  Gen.  xxxi.  14. 


322  PERSONS  [Part  II. 

illustrate  some  further  points  which  we  can  understand  well 
from  the  Babylonian  code.  Part  of  the  agreement  between  him 
and  Laban  is  that  he  shall  not  "afflict"  Laban's  daughters,  and 
that  he  shall  not  "take  wives  beside  my  daughters."  ^  This 
is  quite  in  the  spirit  of  a  Babylonish  marriage  contract.  But 
there  is  a  further  point  of  similarity.  Though  Jacob  took  no 
more  wives,  each  of  his  two  wives  gave  him  a  handmaid  precisely 
as  is  contemplated  in  the  Code  of  Hammurabi,  and  the  hand- 
maid's children  were  in  each  case  reckoned  to  the  wife.  In  Ham- 
murabi's language,  "the  wife  had  granted  him  the  children." 

Polygamy  is  contemplated  in  the  Law,  the  only  limitation  being 
that  in  the  Priestly  Code  two  sisters  are  not  to  be  married  at  the 
same  time.  Concubinage  is  also  contemplated,  and  so  is  the  sale 
of  a  daughter  for  that  purpose.  The  daughter  that  is  sold  is 
especially  protected  in  the  Book  of  the  Covenant.  She  is  not  to  be 
set  free  in  the  Sabbatical  year,  but  if  she  "please  not  her  master 
who  hath  espoused  her  to  himself,  then  shall  he  let  her  be  redeemed ; 
to  sell  her  unto  a  strange  people  he  shall  have  no  power."  If  a 
girl  were  espoused  to  his  son  she  should  be  dealt  with  "  after  the 
manner  of  daughters,"  or  if  married  to  her  master  she  was  pro- 
tected in  case  he  took  another  wife.  "Her  food,  her  raiment  and 
her  duty  in  marriage  shall  he  not  diminish."  In  the  humane  code 
of  Deuteronomy  protection  is  even  extended  to  the  captive  bond- 
woman. She  is  to  be  allowed  a  full  month  for  mourning  before 
being  married,  and  once  married,  "if  thou  have  no  delight  in 
her  then  thou  shalt  let  her  go  whither  she  will,  but  thou  shalt  not 
sell  her  at  all  for  money,  thou  shalt  not  deal  with  her  as  a  chattel 
because  thou  hast  humbled  her." 

While  there  is  no  prohibition  of  polygamy  in  the  Law  —  Deuter- 
onomy merely  states  that  the  children  of  the  better-loved  wife 
are  not  to  be  preferred  to  the  first-born  —  in  practice,  as  among 
the  Eg;yptians,  the  custom  seems  to  have  died  out  little  by  little,^ 
and  in  the  Proverbs  monogamy  seems  to  be  assumed  throughout. 
The  right  of  divorce  rested  entirely  wath  the  man,  and  the  grounds 
of  it  in  Deuteronomy  are  very  vaguely  expressed.  "If  she  find 
no  favour  in  his  eyes  because  he  hath  found  some  unseemly  thing 
in  her,  he  shall  write  her  a  bill  of  divorcement."  But  none  of  the 
codes  are  at  pains  to  define  the  grounds  of  divorce  clearly.  They 
assume  it  as  a  right  of  the  husband,  and  their  careless  expressions 

1  Gen.  xxxi.  50. 

2  Apparently  it  was  not  formally  forbidden  till  the  tenth  century, 
A.D.     {Bryce,  "Studies,"  ii.  p.  384.) 


J 


Chap.  XV.]      WOMEN    AND   MARRIAGE    UNDER    CIVILIZATION  323 

have  given  grounds  for  much  difference  of  interpretation  which 
has  affected  Christian  as  well  as  Jewish  Law.^ 

There  is  no  mention  in  the  Law  of  divorce  by  the  wife,  but  among 
the  later  Jews  she  could  claim  a  divorce  if  her  husband  were  a 
leper  or  afflicted  by  a  polypus  or  engaged  in  a  repulsive  trade." 

The  position  of  the  woman  in  the  family  gives  her  guardian 
certain  definite  rights  and  duties  as  to  the  disposal  of  her  person. 
Thus  Judah,  as  the  head  of  the  family,  proposes  to  burn  Tamar, 
his  daughter-in-law,  for  imchastity,  but  acknowledges  in  time 
that  he  was  bound  to  give  her  as  a  widow  of  his  son  Onan  to  his 
other  son  Shelah.  The  husband's  brother,  in  fact,  had  the  duty 
of  marrying  the  widow,  and,  failing  the  brother,  the  obligation 
fell  on  the  kindred.  Boaz,  as  Ruth's  kinsman,  first  offers  her  to  a 
nearer  relative,  and  on  his  refusal  weds  her  himself.  The  daughter 
does  not  inherit  landed  property  if  there  are  sons,  but  failing  sons, 
she  becomes  the  heir,  and  in  that  case  she  must  marry  within  the 
tribe,  a  recognition  of  the  eminent  ownership  of  the  tribe  over  the 
whole  land. 

Such  being  the  position  of  women,  it  is  not  to  be  expected 
that  the  attitude  expressed  to  them  in  literature  should  be  one  of 
great  respect  or  admiration.  At  best  their  virtues  as  house- 
wives were  admitted,  but  in  the  famous  description  of  the  virtuous 
housewife  in  the  Proverbs  there  is  not  a  word  of  a  union  of  mind 

'  Of  the  Jewish  Legalists  the  school  of  Shammai  (first  century,  b.c), 
pressing  the  word  "nakedness"  which  is  the  most  literal  rendering  of  the 
term  translated  "imseemly,"  understood  it  of  unchastity;  the  school  of 
Hillel,  pressing  (in  Rabbinical  fashion)  the  word  "thing,"  and  the  clause, 
"if  she  find  no  favour  in  his  eyes"  (though  this,  as  a  matter  of  fact,  is 
qualified  by  the  following  words,  "because  he  hath  found  some  unseemly 
thing  in  her"),  supposed  the  most  tri\'ial  causes  to  be  included,  declaring, 
for  instance,  that  a  wife  might  be  divorced,  even  if  she  burnt  her  husband's 
food,  or  if  he  saw  a  woman  who  pleased  him  better.  It  may  be  doubted, 
however,  how  far  the  latter  opinion  was  literally  acted  upon.  The  grounds 
mentioned  in  the  Alishnah  as  justifying  divorce  are,  ^^olation  of  the  law  of 
Moses,  or  of  the  Jewish  customs,  the  former  being  said  to  consist  in  a 
woman's  causing  her  husband  to  eat  food  on  which  tithe  has  not  been  paid  ; 
in  causing  him  to  offend  against  the  law  of  Lev.  xviii.  19;  in  not  setting 
apart  the  first  of  the  dough.  Num.  xv.  20  ft".,  and  in  failing  to  perform  any 
vow  which  she  has  made ;  and  the  latter  in  appearing  in  pubhc  with 
dishevelled  hair,  spinning  (and  exposing  her  arms)  in  the  streets,  and  con- 
versing indiscriminately  with  men,  to  which  others  added,  speaking 
disrespectfullj'  of  her  husliand's  parents  in  his  presence,  or  brawling  in 
his  house.  The  Karaite  Jews  limited  the  grounds  of  divorce  more  exclu- 
sively to  offences  against  modesty  or  good  taste,  a  change  of  religion, 
serious  bodily  defects,  and  repulsive  complaints.  That  the  Hebrew 
word  denotes  something  short  of  actual  unchastity,  may  be  inferred  from 
the  fact  that  for  this  a  different  penalty  is  enacted.  \'iz.  death,  also  the  same 
expression  is  used,  not  of  what  is  immoral,  but  only  of  what  is  unbecoming. 
It  is  most  natural  to  understand  it  of  immodest  or  indecent  beha\iour. 
(Summarized  from  Driver,  "Deuteronomy^"  p.  270,  note.) 

^  Driver,  p.  271. 


324  PERSONS  [Part  II. 

or  soul,  and  there  is  little  indeed  to  differentiate  the  wife  from  the 
cheerful,  active,  intelligent,  and  let  us  add,  charitable  housekeeper. 
We  read  that  "she  spreadeth  out  her  hands  to  the  poor,"  and 
again,  "  she  openeth  her  mouth  with  wisdom  and  the  law  of  kind- 
ness is  on  her  tongue,"  but  there  is  no  word  of  the  romance  of  love 
or  of  the  higher  side  of  the  conjugal  relation.^ 

On  the  other  side  of  the  account  woman  is  regarded  as  the 
source  of  evil.  "Give  me  any  wickedness  save  the  wickedness 
of  a  woman  "  is  the  burden  of  Ecclesiasticus.  A  bad  woman  is 
the  temptress  and  the  destroyer  throughout  the  Wisdom  literature, 
and  it  was  through  woman  that  sin  came  into  the  world,  and  for 
this  reason,  that  she  was  to  be  subject  to  her  husband.^ 

6.  We  have  seen  that  among  the  primitive  Arabs  mother-right 
and  polyandrous  unions  prevailed,  but  in  Mohammed's  time  the 
women  were  mere  chattels,  forming  a  part  of  the  estate  of  their 
husband  or  father  and  descending  to  the  son.  They  were  held  in 
low  account,  and  female  infants  were  frequently  put  to  death. 
"Women  are  the  whips  oJ_Satan  "  is  an  amiable  saying  of  the 
mascuTmeTTrab  of  tEisTperiod,  having  said  which  it  is  not  surprising 
that  he  should  add :  "  A  man  can  bear  anything  but  the  mention 
of  his  wives."  Mohammed  set  himself  to  ameliorate  the  position 
of  women.  "Ye  men,"  he  said,  "ye  have  rights  over  your  wives, 
and  your  wives  have  rights  over  you."  But  he  was  not  able  to 
carry  his  reforms  very  far  according  to  our  ideas.  He  limited  the 
number  of  legitimate  wives  to  four,  but  allowed  an  unlimited  num- 
ber of  slave  concubines ;  he  insisted  that  the  woman's  consent  to 
her  marriage  should  be  obtained,  but  the  consent  of  her  guardian 
also  remained  essential.  Whether  the  temporary  marriage  in 
practice  in  Mohammed's  time  is  still  allowed  is  debated  between 
the  sects.^ 

But  free  divorce  Mohammed  was  compelled  to  tolerate :  "  The 
thing  which  is  lawful  but  is  disliked  by  God  is  divorce."  There 
are,  indeed,  certain  cases  in  which  divorce  is  compulsory,*^  but 
even  apart  from  them  the  husband  may  divorce  his  wife  without 
assigning  any  cause.  The  wife,  however,  is  protected  by  the 
dower,  or  more  strictly,  the  bride  price,  of  which  a  portion  is  de- 
ferred, and  which  may  be  claimed  by  the  wife  if  she  is  divorced 

1  It  is  probably  another  writer  in  the  Book  of  Proverbs  who  says  that 
"a  virtuous  woman  is  a  crown  to  her  husband."      (Prov.  xii.  4.) 

^  Mr.  Monte fiore  points  out  that  the  appreciation  of  a  good  woman  is 
higher  in  the  "Wisdom  of  the  Son  of  Siraeh"  than  in  the  Proverbs,  in 
correspondence  with  the  general  advance  in  her  position.  ("Hibbert 
Lectui-es."  1892,  p.  491.) 

3  Hughes,  "Dictionary  of  Islam,"  p.  314.  *  Ibid.,  pp.  87,  88. 


Chap.  XV.]      WOMEN   AND  MARRIAGE   UNDER   CIVILIZATION  325 

without  cause.^  Her  position  is  therefore  somewhat  similar 
to  that  which  the  provident  Babylonian  or  Egyptian  woman 
secured  for  herself  by  the  marriage  contract.  On  her  side,  the 
wife  is  bound  to  live  with  her  husband,  but  if  she  can  prove  ill- 
treatment,  can  obtain  a  separation  from  the  Kadi.  Bad  conduct 
or  gross  neglect  is  a  good  defence  to  a  suit  brought  by  the  husband 
for  the  restitution  of  conjugal  rights."  The  husband  has,  however, 
the  right  of  chastisement,  and  the  admonition  of  the  prophet, 
"Not  one  of  you  must  whip  his  wife  hke  whipping  a  slave."  does 
not,  to  European  ears,  appear  to  err  on  the  side  of  chivalry.^ 

Yet  Mohammed  made  the  kind  and  equitable  treatment  of 
wives  a  moral  if  not  a  legal  duty  :  "  The  best  of  you  is  he  who  be- 
haves best  to  his  wives."  The  lord  of  many  women  must  be 
impartial.  "  \Mien  a  man  has  two  wives  and  does  not  treat  them 
equally  he  will  come  on  the  day  of  resurrection  with  half  of  his 
body  fallen  off."  But  if  there  is  to  be  kindness,  it  is  to  be  such  as 
is  due  to  the  weaker  vessel :  "  Admonish  your  wives  with  kindness, 
because  women  were  created  from  the  crooked  bone  of  the  side."  ^ 

The  position  of  the  wife  under  the  Sunni  law  is  thus  summed 
up  by  ]Mr.  Hughes  :  — 

"Her  consent  to  marriage  is  necessary.  She  cannot  legally  object 
to  be  one  of  four  wives.  Nor  can  she  object  to  an  unlimited  number 
of  handmaids.  She  is  entitled  to  a  marriage  settlement  or  dower,  which 
must  be  paid  to  her  in  case  of  divorce  or  separation.  She  may,  however, 
remit  either  whole  or  part  of  the  dower.  She  may  refuse  to  join  her  hus- 
band until  the  dower  is  paid.  She  may  be  at  any  time,  with  or  without 
cause,  divorced  by  her  husband.  She  may  seek  or  claim  divorce  (khul') 
from  her  husband  wath  her  husband's  consent.  She  may  be  chastised 
by  her  husband.  She  cannot  give  evidence  in  a  court  of  law  against  her 
husband.  According  to  the  Sunnis,  her  evidence  in  favour  of  her  hus- 
band is  not  admissible,  but  the  Shi'ahs  maintain  the  opposite  view.  Her 
husband  can  demand  her  seclusion  from  public.  If  she  becomes  a  widow 
she  must  observe  hidad  or  mom-ning  for  the  space  of  four  months  a,nd 
ten  days.  In  the  event  of  her  husband's  death  she  is  entitled  to  a  portion 
of  her  husband's  estate  in  addition  to  her  claim  of  dower,  the  claim  of 
dower  taking  precedence  of  all  other  claims  on  the  estate."  ^ 


»  Hughes,  91.  2  75^-^,^  573 

3  The  traditions  record  that  the  prophet  forbade  the  Moslems  to  beat 
their  wives.  Brute  force  being  thus  ruled  out,  natural  superiority  asserts 
itself,  and  the  faithful  come  to  complain  that  the  women  have  got  the 
upper  hand.  The  prophet  consequently  revokes  the  order,  and  then  the 
women  complain  in  their  turn.  Mohammed  is  then  reduced  to  moral 
suasion:  "Those  men  who  beat  their  vvives  do  not  behave  well.  He  is 
not  of  my  way,  who  teaches  a  woman  to  go  astray  and  entices  a  slave 
from  his  master."      {Hughes,  671.) 

*  A  wife  taken  in  adultery  might  be  stoned,  but  four  witnesses  with  a 
fivefold  repetition  of  the  oath  were  required  to  prove  the  offence. 
("Koran,"  Part  I.,  Chap.  iv.  15.)  Xor  is  the  death-penalty  recom- 
mended, but  rather  seclusion  in  the  house.  {Loc.  cit.  and  Hughes,  p.  11.) 
Fornication  is  strictly  forbidden  to  men. 

^  Hughes,  p.  671. 


326  PERSONS  [Part  II. 

Nor  has  a  woman  full  legal  privileges  outside  marriage.  Her 
evidence  is  not  accepted  in  cases  involving  retaliation.  Her 
fine  is  one-half  that  of  a  man,  and  the  value  of  her  testimony  one- 
half  that  of  a  male  witness.  Yet  she  may  hold  public  positions, 
she  may  act  as  a  judge  except  where  retaliation  is  involved,  and 
in  some  Mohammedan  states  princesses  have  ruled.  She  can  hold 
property,  retains  the  usufruct  of  her  property  during  marriage, 
and  takes  the  property  with  her  in  case  of  divorce.  She  has  also 
a  claim  to  inherit  along  w^th  her  male  relations,  confirmed  by  the 
express  words  of  the  prophet.^  She  is  not  to  be  slain  in  war,  and 
for  apostasy  she  is  not  put  to  death,  but  imprisoned  until  she  re- 
cants. The  general  attitude  of  the  Mohammedan  world  towards 
her  is  too  well  known  to  need  illustration,  but  two  traditional  say- 
ings of  jMohammed  may  be  quoted  as  illuminating  the  intellectual 
chaos  to  which  a  well-meaning  man  is  reduced  when  he  con- 
templates that  helpmate  over  whom  he  so  complacently  assumes 
superiority  and  dominion.  The  first  is  this,  "I  have  not  left 
any  calamity  more  detrimental  to  mankind  than  women,"  and  the 
second  is  the  complementary  expression  of  the  master  in  his  other 
mood,  "  The  world  and  all  things  in  it  are  valuable,  but  more  valu- 
able than  all  is  a  virtuous  woman." 

With  this  final  contradiction  mirrored  in  the  double  motive  for 
secluding  women,  (a)  as  a  compliment,  implying  that  they  are 
elevated  above  the  ordinary  affairs  of  life;  (b)  as  a  precaution, 
implying  that  they  are  not  to  be  trusted  with  liberty  —  with  this 
contradiction  in  theory  and  in  practice,  rooted  as  it  is  in  a  radically 
false  view  of  womanhood,  we  may  leave  the  Oriental  world  and 
its  efforts  to  deal  with  the  relations  of  the  sexes. 

7.  But  the  first  nation  of  the  West  to  which  we  turn  was  in 
this  respect  largely  orientalized.  The  Greeks  founded  Western 
civilization,  but  their  rapid  advance  in  general  culture  was  by  no 
means  accompanied  by  a  corresponding  improvement  in  the 
position  of  women.  On  the  contrary,  it  is  in  the  earliest  period 
and  among  some  of  the  most  backw^ard  states  that  the  woman 
has  most  freedom. 

The  Homeric  woman  moves  freely  among  men.  Nausicaa 
welcomes  Odysseus  and  brings  him  to  her  father's  house.  She 
bids  him  kneel  to  her  mother  if  he  would  gain  a  welcome  and 
succour  from  her  father.^    The  relation  of  husband  and  wife  is' 

1  "Koran,"  i.  p.  72;   cf.  Dareste,  pp.  61-63. 

2  At  the  same  time  Arete's  position  seems  to  have  been  somewhat 
exceptional,  for  Aleinous  honoured  her  as  no  other  woman  in  the  world  is 


Chap.  XV.]        WOMEX   AND   MARRIAGE   UNDER   CIVILIZATION  327 

close  and  tender ;  Andromache  relates  how  her  father's  house  has 
been  destroyed  with  all  that  were  in  it,  "  but  now,  Hector,  thou  art 
my  father  and  gracious  mother,  thou  art  my  brother,  nay,  thou 
art  my  valiant  husband."  ^ 

We  never  hear  of  more  than  one  legitimate  wife.  On  the  other 
hand,  the  carrying  off  of  women  as  bond-slaves  was  habitual. 
Briseis  was  a  recognized  portion  of  the  spoil,  and  such  capture  im- 
plies concubinage  along  with  legitimate  marriage.-  If  the  bride- 
groom could*  not  take  the  bride  in  a  raid,  he  bought  her  for  a 
goodly  number  of  cattle,  and  over  his  concubines,  at  any  rate,  he 
exercised  powers  of  life  and  death.  Odysseus  compels  the  faithless 
handmaidens  to  carry  forth  the  bodies  of  the  suitors  and  bids  Telem- 
achus  put  them  to  the  sword ;  but  Telemachus  thinks  this  too 
good  a  death,  and  strings  them  up  to  a  ships  cable  in  the  hall, 
where  they  hang  struggling  like  thrushes  in  a  net.^ 

The  patria  potestas  persisted  in  a  mild  form  in  the  historical 
period.^  The  father  was  the  religious  and  legal  head  of  the  family  ; 
he  performed  the  family  sacra,  and  represented  wife,  children  and 
slaves  in  the  courts.^  Xor  were  limitations  on  personal  liberty 
and  responsibility  peculiar  to  the  wife,  for  here  again  woman  was 
subject  to  the  three  obediences  to  father,  husband,  or  son, 
and  failing  them,  to  her  nearest  blood  relation. 

The  sons  in  most  cases  divided  the  inheritance,  the  daughters 
having  only  a  right  to  maintenance  and  dowry.  But  what 
property  women  had  remained  theirs  during  marriage,  and,  in 
some  states  they  even  had  the  right  of  management.^  In  early 
times  the  father  might  sell  his  daughters,  or  brothers  their  sisters, 
when  under  their  guardianship.  This  right  was  abolished  by 
Solon  except  in  the  case  of  unchastity,^  but  a  father  retained  the 

honoured  of  all  that  now-a-days  keep  house  under  the  hand  of  their  lords. 
("Od.,"  \ii.,  Butcher  and  Lang  Tr.,  p.  105.) 

1  "  lUad,"  \i.  429,  430. 

2  Yet  the  wife  might  resent  this.  Laertes  bought  Eurycleiain  her  j'outh 
for  twenty  oxen  and  honoured  her  equally  %\'ith  his  wife,  "but  he  never 
lay  ■ftith  her,  for  he  shunned  the  WTath  of  his  lady."  ("  Od.,"  i.,  Tr.  Butcher 
and  Lang,  p.  15.) 

3"0d.,"  xxii.  468. 

*  The  right  of  exposing  a  cliild  was  limited  in  Sparta  by  the  meeting  of 
the  tribesmen.  {Plutarch,  "Lyeurgus,"  16,  cited  by  Leist.)  Leist,  p.  .59. 
thinks  the  d7Xio-Ters  must  be  meant.  At  Athens  the  right  disappeared 
at  an  early  date,  and  the  recognition  of  the  child  could  be  compelled 
by  legal  process.      (Leist,  ib.)     The  adult  son  was  emancipated. 

5  The  Athenian  woman  could  follow  no  suit  of  a  value  e.xceeding  a 
medimnos,  except  through  a  guardian.  The  wife  had  verj'  limited  powers 
of  alienation  A\ithout  the  husband's  consent. 

"  Busolt,  "Handbuch  der  Klassischen  Altertumswissenschaft,"  19,  20. 

'  Plut.  "Solon,"  13,  23,  cited  by  Busolt,  I.  c. 


328  PEKSONS  [Part  II. 

right  of  controlling  his  daughter  and  even  of  disposing  of  her  by 
will/  or  of  giving  his  son,  while  a  minor,  in  adoption  to  another 
family.-  There  could  be  no  legitimate  marriage  without  an  assign- 
ment of  the  bride  by  her  guardian.^  The  wife  passed  into  the 
husband's  family,  and  was  separated  from  her  own  Idn  and  their 
sacra.  At  Athens  she  might  be  divorced  on  payment  of  the  bride 
price,  while  on  her  side  she  could  only  obtain  a  divorce  by  the  sanc- 
tion of  the  archon.^  At  Sparta,  where,  in  some  respects,  e.g.  in 
regard  to  property,  she  had  a  higher  position,^  it  seems  that  looser 
relations  prevailed.  Brothers  might  share  a  wife  in  common, 
and  wife-lending  was  recognized,  whereas  at  Athens  the  punish- 
ment of  adultery  was  enforced.^  Monogamy  prevailed  in  the 
main,^  but  concubinage  was  legally  recognized,  provided  that  the 
handmaiden  did  not  reside  in  the  same  house  with  the  legal  wife. 
The  concubine's  children  might  be  legitimated  by  adoption,  and 
might  then  enter  the  phratry,  whereby  they  acquired  all  the 
privileges  of  citizenship.^ 

But  the  woman,  though  under  ward,  was  certainly  not  regarded 
as  a  chattel.  Probably  Aristotle  expressed  the  ordinary  Greek 
view  accurately  enough  when  he  said  that  a  man  should  rule  his 
slaves  as  a  despot,  his  children  as  a  king,  and  his  wife  as  a  magis- 
trate in  a  free  state.  Yet  it  was  a  Greek  thinker  who  first  frankly 
argued  the  case  for  the  free  admission  of  women  to  all  the  duties 

1  Letourneau,  "La  Femme,"  416. 

^  Busolt,  p.  19.  According  to  Leist,  p.  62,  he  had  practical,  but  not 
legal  control  over  the  son's  marriage. 

^  At  any  rate  at  Athens.  {Busolt,  201.)  The  dyxi-a-TeTs  (relations  to 
the  fourth  degree  on  both  sides)  had  to  see  that  the  orphan  heiress  was 
married,  and  her  nearest  male  relation  (after  her  brothers)  had  the  right 
of  marrying  her,  and  correspondingly  the  duty  of  so  doing  or  of  finding 
a  husband  for  her.      {Busolt,  20  ;   Leist,  40,  47.) 

^  Letourneau,  "La  Femme,"  423.  At  Sparta  divorce  for  sterility  seems 
to  have  been  e.xpeeted  at  any  rate  of  a  king.      {Herodt.,  v.  40.) 

5  According  to  Aristotle  two-fifths  of  the  land  of  Sparta  had  come  into 
the  hands  of  women  bj^  inheritance  and  bequest  in  his  time,  and  the 
Spartiate  women,  ha\ang  successfully  resisted  the  attempt  of  Lycurgus  to 
impose  on  them  the  same  discipline  as  the  men  accepted,  enjoyed  a  state  of 
liberty  which  in  Aristotle's  A-iew  amounted  to  licence,  and  was  disastrous 
to  Sparta.     ("Pohtics,"  ii.  1269  B,  1270  A.) 

^  By  the  Solonian  legislation  the  husband  who  concealed  his  wife's 
adultery  was  punished  wth  drt/u^a.  Yet  the  punishment  of  the  adulterer 
was  left  in  the  husband's  hands.  If  caught  flagrante  delicto  he  was  abso- 
lutely at  the  husband's  mercy.  In  any  case  he  could  be  imprisoned  at 
the  husband's  pleasure,  and  was  released  on  payment  of  a  fine.  {Letour- 
neau, p.  422.)  The  wife  was  not  killed,  but  divorced.  {Leist,  p.  300.) 
For  an  instance  of  wife-lending  at  Athens,  Letourneau  cites  the  case  of 
Kimon.      {Letourneau,  p.  415.) 

^  Anaxandrides,  king  of  Sparta,  declined  to  divorce  his  barren  wife, 
but  consented  to  take  a  second.  This  was  regarded  as  qmte  un-Spartan. 
(Herodt.,  v.  40.) 

^  Busolt,  op.  cit.,  p.  201. 


Chap.  XV.]      WOMEN   AND   MARRIAGE   UNDER   CIVILIZATION  329 

and  rights  of  man.  Plato's  position  differs  from  that  of  his  modern 
successors  in  that  he  insists  rather  on  women's  duties  than  on  their 
rights,  more  on  what  the  state  loses  by  their  restriction  to  the 
family  circle  than  on  the  loss  to  their  own  personality.  Further, 
though  he  had  the  experience  of  Sparta  to  go  upon,  his  own  teach- 
ing was  too  much  associated  with  polemics  against  the  family 
and  with  a  fanciful  ideal  of  communism  to  be  taken  quite  seriously. 
On  the  other  hand,  Aristotle  summed  up  the  whole  philosophy  of 
the  ancient  world,  of  the  East,  and  perhaps  the  prevailing  senti- 
ment in  modern  Europe,  when,  discussing  those  who  are  fit  to 
bear  rule  and  order  the  affairs  of  men,  he  says  that  a  slave  does 
not  possess  that  power  of  deliberation  which  is  the  basis  alike  of 
self-government  and  of  the  government  of  others.  A  child 
possesses  it  but  imperfectly.  A  woman  possesses  it,  but  in  her  it 
is  without  authority.  After  all,  the  Greeks  did  little  to  develop  it. 
There  appear  to  have  been  no  regular  schools  for  girls  at  Athens,^ 
and  it  was  only  the  courtesan  of  the  higher  class  who  was  a  fit 
helpmeet  mentally  for  Pericles  or  capable  of  sustaining  a  conver- 
sation with  Socrates.  Xenophon's  ideal  wife  is  a  good  housekeeper, 
like  her  of  the  Proverbs. 

8.  The  modern  European  marriage  law  has  three  roots  —  Roman 
Law,  Primitive  Teutonic  custom,  and  the  Christian  doctrine  of 
marriage;  but  it  has  been  largely  re-modelled  in  the  modern 
period  under  rationalizing  influences.  It  cannot  be  studied 
statically,  but  has  a  long,  varied  and  interesting  history,  of  which 
an  attempt  will  be  made  here  to  give  the  briefest  possible  out- 
line. This  history  starts  with  the  early  Roman  family,  organized 
as  it  was  under  the  highly-developed  potesfas  of  the  father.  All 
the  children  are  the  father's,  and  in  law  he  can  dispose  of  them  at 
pleasure.-  He  can  chastise  them,  sell  them  into  slavery,  and  even 
put  them  to  death  (jus  viiw  necisque).^  Before  exercising  this 
supreme  power  he  has,  it  is  true,  to  consult  the  council  of  relations, 
but  he  is  not  bound  by  their  judgment.  In  short,  the  paternal 
power  is  nowhere  more  strongly  developed,  nor  does  the  position 
of  wife  and  children  anywhere  approach  in  law  more  nearly  to 
that  of  slaves,  owned  by  the  paterfamilias,  and  except  as  a  matter 
of  grace,  incapable  of  owning  anything  themselves. 

1  Here  the  Spartans  were  more  liberal,  as  they  admitted  women  to  the 
gymnasia.      (Busolt,  ii.   158.) 

^  Exposure,  however,  if  the  law  attributed  by  Dionysius  (ii.  15,  Bruns, 
p.  7)  to  Romulus  is  correct,  was  limited  to  female  infants  and  required  the 
consent  of  the  neighbours.     No  child  was  to  be  killed  under  three  years. 

3  Bruns  (p.  7),  quoting  Dion.  ii.  23. 


330  PERSONS  [Part  II. 

Into  the  family  thus  constituted  a  wife  passed  on  her  marriage. 
The  marriage  might  be  accompHshed  by  either  of  two  forms,  and 
it  might  also  be  made  valid  apparently  without  any  form  at  all. 
The  first  form  was  confarreatio,  in  which  the  essential  feature  was 
the  eating  by  both  bride  and  bridegroom  of  a  cake  —  an  act  of 
the  kind  which  we  call  symbolic,  but  w^hich  to  primitive  man 
is  rather  magical,  actually  efficacious  in  establishing  a  unity  of  the 
man  and  woman.  The  second  form  was  called  coemytio,  and  was 
of  the  nature  of  a  formal  sale,  almost  certainly,  in  the  light  of  what 
we  know  of  other  peoples,  preserving  the  memory  of  a  real  purchase 
of  the  wife  by  the  husband,  which  as  anything  but  a  form  had 
already  fallen  into  disuse  when  history  begins.  Both  these  forms 
transferred  the  wife  from  the  power  (potestas)  or  hand  {manus)  of 
her  father  into  that  of  her  husband,  to  whom  she  became  as  a 
daughter.  For  all  purposes,  sacred  and  profane,  she  passed  from 
the  one  family  to  the  other.^  But  just  as  inanimate  property, 
which  normally  passed  from  hand  to  hand  by  a  special  ceremony 
of  transfer,  might  also  acquire  a  new  owner  by  long  unchallenged 
possession  and  use,  so  was  it  also  with  human  property.  The 
woman  who  without  either  of  the  two  ceremonies  mentioned  was 
given  by  her  father  to  a  man  and  lived  with  him  as  his  wife  for  a 
whole  year  without  interruption  became  in  law  his  wife  by  use 
(usus)  and  passed  as  completely  in  manum  mariti  as  if  she  had 
eaten  with  him  the  sacred  cake. 

All  these  three  modes  of  marriage  were  in  existence  at  the  time 
of  the  drawing  up  of  the  Twelve  Tables,  and  whichever  of  them 
she  chose,  the  woman  passed  into  the  family  and  into  the  power 
of  her  husband.  Yet  her  position  differed  in  two  essential  respects 
from  that  of  the  Oriental  wife.  She  was  her  husband's  only 
wife.  At  no  period  of  Roman  history  are  there  any  traces  of 
polygamy  or  concubinage."  And  not  only  was  she  the  sole  wife, 
but  the  tie  which  bound  her  to  her  husband  was  difficult  to  break 
and  rarely  broken.  It  is  true  that  each  form  of  union  could  be 
undone  by  a  certain  prescribed  ceremony  —  confarreatio  by 
diffarreatio,  coemptio  by  remancipatio.  But  these  were  resorted 
to  rarely,  and  it  would  appear  only  for  grave  offences,  the  council 
of  relations  being  first  called  in  to  give  judgment.^     It  does  not 

1  Cf.  on  the  religious  marriage  Dion.  (Bruns,  p.  6). 

^  The  concubinate  of  which  we  hear  in  Roman  law  is  a  form  of  union, 
bereft  of  some  of  the  civil  rights  of  marriage,  not  the  relation  of  a  married 
man  to  a  secondary  ■^ife  or  slave-girl. 

3  Bryce,  "Studies  in  Jurisprudence,"  vol.  ii.  p.  403.  The  offences  for 
which,  according  to  Dionysius,  ii.  25  {Bruns,  p.  7),  she  was  brought  to 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER   CIVILIZATION  331 

appear  that  the  wife  had  any  means  of  repudiating  the  husband, 
or  of  emancipating  herself  from  his  manus.  In  practice  marriage 
was  so  nearly  indissoluble  that  the  divorce  of  his  wife  by  Spurius 
Carvilius  Ruga  in  B.C.  231  was  declared  to  be  the  first  instance  ^ 
known  since  the  foundation  of  the  city.  On  the  other  hand,  it 
must  be  remembered  that  the  unfaithful  wife  might  be  put  to 
death  without  trial,  and  that  the  husband  who  had  other  good 
causes  of  complaint  would  be  supported  b}'  the  family  council 
in  executing  or  in  repudiating  her." 

9.  Such  was  the  primitive  Roman  marriage  with  the  manus. 
But  even  in  the  days  of  the  Twelve  Tables  a  wholly  different 
union  had  made  its  appearance.  If  the  enjoyment  of  property 
was  broken  for  awhile  before  the  year  was  out,  no  title  to  it 
arose  out  of  the  usufruct.  This  idea  was  applied  to  marriage 
by  usus,  and  already  in  the  time  of  the  Twelve  Tables  we 
find  that  if  the  cohabitation  was  broken  for  three  nights  in 
every  year,  the  wife  did  not  become  the  property  of  the  hus- 
band. When  or  how  it  became  a  custom  to  convert  this 
breach  of  cohabitation  into  a  system,  and  so  establish  a  form 
of  marriage  in  which  the  wife  did  not  pass  into  the  manus  of 
the  husband,  we  do  not  know.  What  is  certain  is  that  this 
new  form  of  free  marriage  rapidly  ousted  its  older  rivals. 
The  bride  now  remained  in  her  father's  power,  she  was  still 
a  member  of  her  own  family,  and  by  consequence  had  no  posi- 
tion in  that  of  her  husband.  Subject  to  the  nominal  control 
of  her  father  or  her  guardian,  she  thus  acquired  complete  control 
of  her  own  property,  and  became,  in  fact,  her  own  mistress.  She 
was  not  in  theory  a  free  woman  unless  emancipated.  She  was 
only  free  from  her  husband.  But  it  need  hardly  be  pointed  out 
that  the  practical  control  of  relations  with  whom  as  a  married 

trial  before  a  council  of  relatives  were,  however,  punishable  with  death. 
They  were  adultery  and  \vine-drinking.  The  grounds  for  divorce  stated 
by  Plutarch  are  poisoning  the  children,  the  use  of  false  keys,  and  adultery. 
Divorce  for  any  other  reason  was  punished  with  confiscation  of  property. 
The  wife  could  not  leave  her  husband  in  any  case.  {Bruus,  p.  6.  Cf. 
Girnrd,  p.  154.)  Divorce  by  the  husband  was  recognized  in  the  Twelve 
Tables.  The  husband  takes  the  wife's  keys  away  and  turns  her  out  of 
the  house,  "lllani  suam  suas  res  sibi  habere  jussit,  ex  XII  tabulis,  elaves 
ademit,  e.xegit."     (Cic.  "Phil."  ii.  28.     Bruns,  p.  22.) 

1  Ruga's  wife  was  divorced  for  sterility,  and  Mr.  Bryce  takes  the  sweep- 
ing statement  of  the  authorities  to  mean  that  it  was  the  first  instance  of  a 
divorce  in  w^hich  no  crime  was  alleged  (ii.  403). 

-  At  the  same  time,  if  Plutarch  ("Rom."  22)  is  to  be  trusted,  it  was  a 
religious  offence  to  sell  her  as  a  slave.  {Bruns,  7.)  In  this  point  she  en- 
joyed a  material  advantage  over  the  children. 


332  PERSONS  [Part  II. 

woman  she  no  longer  lived  was  not  likely  to  be  a  very  serious 
matter,  and  in  point  of  fact,  where  it  was  felt  to  be  irksome,  it 
was  from  time  to  time  limited  by  law.  Thus  the  father  had 
naturally  as  a  part  of  his  potestas  the  right  to  break  the  marriage 
at  will.  But  this  logical  application  of  the  paternal  power  was 
abolished  under  the  Antonines,  or  restricted  to  cases  where  there 
was  grave  cause  for  its  exercise.^ 

On  the  other  hand,  the  tutela  was  a  reality  for  unmarried  women, 
and  the  Roman  law  never  seems  to  have  fully  acknowledged  that 
the  consent  of  the  adult  woman,  and  her  consent  alone,  was  the 
one  necessary  condition  to  her  marriage.  Originally,  indeed,  the 
consent  of  the  parties  does  not  seem  to  have  been  required  at  all. 
This  would  be  all  in  accordance  with  primitive  ideas.  But  here 
again  the  law  was  modified  as  time  went  on,  and  the  consent  of 
the  woman,  as  well  as  the  man,  became  a  normal,  and,  in  some 
cases,  a  legally  necessary  condition. ^  Further,  with  the  general 
emancipation  of  women  the  necessity  for  a  guardian  appears  to 
have  gradually  died  away.^  Hence  the  Roman  matron  of  the 
Empire  was  more  fully  her  own  mistress  than  the  married  woman 
of  any  earlier  civilization,  with  the  possible  exception  of  a  certain 
period  of  Egyptian  history,  and  it  must  be  added,  than  the  wife 
of  any  later  civilization  down  to  our  own  generation.  Practically 
independent  of  her  father,  she  was  legally  independent  of  her 
husband.     She  could  bring  an  action  against  others  and  with  some 

1  The  separation  of  a  wife  from  her  husband  by  her  father  was  forbid- 
den by  Antoninus  Pius,  but  was  permitted  "magna  et  justa  causa  inter- 
veniente"  by  his  successor.  {Sir  F.  Jeune,  "End.  Brit.,"  art." Divorce," 
p.  471 ;  Girard,  p.  155.)  The  son  also  acquired  the  right  to  emancipation 
in  case  of  ill-treatment.      {Girard,  183.) 

2  The  consent  of  the  parties  was  of  course  required  if  they  were  sui 
juris.  On  the  other  hand,  by  the  strict  logic  of  the  law,  if  either  was  in 
tutela,  and  this  would  be  the  normal  case  with  a  girl  (and  even  with  a 
grown-up  woman),  the  affair  would  have  been  one  for  the  guardians  alone. 
Thus  Ulpian,  v.  2,  says,  "Consentiant  si  sui  juris  sunt,  aut  etiam  parentes 
eorum  si  in  potestate  sunt."  (Cited  by  Girard,  p.  147,  note.)  The 
"Lex  Jiilia,"  A.U.C.  736,  gave  an  appeal  from  the  guardians,  if  they 
refused  consent,  to  a  court.  Further,  the  best  jurists,  including  Ulpian 
hirnself,  held  the  consent  of  the  parties  to  be  necessary  as  well  as  that  of 
their  guardians.  "Nuptiae  consistere  non  possunt  nisi  consentiant 
ornnes ;  id  est  qui  coeunt,  quorumque  in  potestate  sunt."  (Digest, 
xxiii.  ii.  2.)  With  this,  however,  we  must  read  —  "Sed  quae  patris 
voluntati  non  repugnat  consentire  intelligitur.  Tunc  autem  solum  dis- 
sentiendi  a  patre  licentia  filiae  conceditur  si  indignum  moribus  vel  tm-pem 
sponsum  ei  pater  eligat."  {Just.  Digest,  xxiii.  i.  12.  Cited  in  Viollet, 
"Droit  Civil  Frangais,"  p.  404.) 

^  Originally  all  women  were  in  tutelage.  "Veteres  voluerunt  feminas, 
etiamsi  perfectae  aetatis  sint  —  in  tutela  esse  —  exeeptis  -virginibus  ves- 
talibus,  quas  .  .  .  liberas  esse  voluerunt ;  itaque  etiam  lege  XII  Tabu- 
larum  cautum  est."  {Gains,  i.  144,  145,  in  ^runs,  21.)  On  the  extinction 
of  the  tutela,  see  Girard,  pp.  196  and  213. 


Chap.  XV.]      WOMEN   AND   MARRIAGE    UNDER    CIVILIZATION  333 

limitations  against  him.^  She  could  hold  property  and  dispose  of 
it  freely.^  On  the  other  hand,  being  separated  from  his  family, 
she  does  not  succeed  to  his  property  if  he  dies  intestate,  nor  do 
her  children  succeed  to  her,  nor  she  to  them.  So  much  followed 
from  the  strict  theory  of  marriage  without  the  mamis,  though 
here,  as  elsewhere,  natural  feeling  had  its  way,  and  practical 
rules  were  introduced  by  the  Praetorian  legislation  to  prevent 
consequences  which  would  seem  harsh  to  the  temper  of  the  time. 

These  changes  naturally  affected  the  stability  of  marriage.  We 
have  seen  that  under  the  old  law  divorce  was  rare  and  difficult, 
but  the  revolution  effected  in  marriage  by  the  disappearance  of 
the  manns  was  nowhere  more  conspicuous  than  in  its  effect  upon 
the  permanence  of  the  marriage  tie.  By  the  newer  form  of  mar- 
riage neither  did  the  wife  pass  into  the  husband's  family  nor  the 
husband  into  the  wife's  family.  They  remained  distinct  persons, 
distinct  individualities,  and  as  they  freely  entered  into  the  mar- 
riage relation,  so  could  they  freely  leave  it.  Divorce,  in  short, 
as  in  so  many  primitive  tribes,  stood  freely  at  the  choice  of  either 
party.  In  the  best  time  of  the  Republic  divorce  without  ade- 
quate cause  incurred  penalties,  a  pecuniary  fine,  or,  still  more 
serious,  the  nota  censoria.  But  with  the  growth  of  the  new  form 
of  marriage  opinion  rapidly  changed,  and,  as  Mr.  Bryce  points 
out,  we  find  at  the  close  of  the  Republic  not  only  Pompey,  but 
"such  austere  moralists  as  Cato  the  Younger  and  the  philosophic 
Cicero"  putting  away  their  wives.  The  reader  of  Cicero's  letters 
who  is  unacquainted  with  the  Roman  law  of  divorce  will  perhaps 
remember  the  shock  of  surprise  with  which,  after  becoming  well 
acquainted  with  Terentia  from  many  allusions  he  suddenly  finds 
Cicero  calmly  referring  to  his  divorce  and  re-marriage.  At  this 
j)eriod  divorce  had,  in  fact,  become  as  commonplace  an  incident 
of  life  as  marriage  itself. 

How  far  the  freedom  of  women  had  the  demoralizing  results 
which  have  been  generally  attributed  to  it  by  those  whose  busi- 
ness it  has  been  to  paint  the  Roman  Empire  in  the  darkest  colours, 

1  In  ease  of  adultery  the  husband  could  originally  kill  the  wife.  The 
"Lex  Julia"  compelled  him  to  prosecute,  the  punishment  being  relegatio. 
The  same  law  punished  fornication  ^\'ith  women  of  rank.  {Girard,  "Man- 
uel elementaire  du  Droit  Romain,"  160,  176.) 

^  Girnrd,  p.  1.59.  The  dos  or  dowrj'  brought  by  the  wife  from  her 
own  fainily's  resources  to  the  maintenance  of  the  joint  life  passed  originally 
to  the  husband ;  but  while  he  continued  to  administer  it,  his  right  over  it 
became  more  and  more  restricted  in  favour  of  the  wife,  so  that  the  jurists 
{e.g.  Ulpian)  speak  of  it  as  being  her  property,  and  this  is  recognized  by 
Justinian,  who  gives  her  a  right  to  reclaim  it  on  the  dissolution  of  the 
marriage  from  whatever  cause.     {Girard,  pp.  922-926.) 


334  PERSONS  [Part  II. 

is  a  matter  on  which  the  best  authorities  do  not  speak  with  confi- 
dence. It  must  be  remembered  that  our  accounts  of  Roman  social 
life  are  drawn  in  part  from  satirists  like  Juvenal,  or  satirical  his- 
torians like  Tacitus,  and  that  we  should  be  as  far  astray  in  taking 
their  description  as  an  impartial  account  of  the  society  in  which 
they  lived  as  we  should  be  if  we  accepted  the  picture  of  our  own 
social  life  as  it  could  be  painted  for  us  by  some  preacher  of  reform, 
or  some  contemporary  censor  of  morals.  The  satirist  has  a  great 
function  in  the  world,  but  it  is  not  that  of  supplying  the  historian 
of  manners  with  material  ready  for  use  without  analysis.  Other 
sources  are  the  writings  of  Christian  fathers,  who  from  a  different 
point  of  view  were  even  more  prone  to  denounce  the  wickedness 
of  the  world  as  they  found  it. 

The  very  fact  that  the  Romans  took  so  serious  a  view  of  feminine 
profligacy  militates  against  the  belief  that  the  corruption  had 
gone  quite  so  deep  as  is  generally  supposed.  Lucius  Piso  declared 
that  modesty  had  vanished  since  the  censorship  of  Messalla  and 
Cassius  in  B.C.  154.^  Yet  we  have  the  testimony  of  Velleius  that 
in  the  proscriptions  of  the  Second  Triumvirate,  while  the  sons  were 
never  faithful  and  freed-men  only  sometimes  so,  the  wives  could 
be  trusted  always.  The  freedom  of  divorce  was  abused,  as  it  is 
in  the  present  day  in  America.  According  to  Seneca  there  were 
women  who  reckoned  the  years  not  by  the  consuls,  but  by  their 
husbands,  but  this  again  is  obviously  satire.  On  the  other  hand, 
there  are  instances  of  three,  four,  or  five  wives,  and,  again,  of  three 
to  five  husbands.  A  marriage  of  forty-one  years  is  recorded  as 
unusually  long,  and  in  this  case  the  wife  had  urged  divorce  and 
re-marriage  upon  her  husband  after  the  death  of  their  daughter, 
for  the  sake  of  getting  children.  This,  however,  is  remote  in  sen- 
timent from  anything  like  profligacy,  and  connects  itself  rather 
with  the  primitive  idea  of  the  necessity  of  children.  The  litera- 
ture of  the  time  has  stories  of  faithful  wives  as  well  as  of  profli- 
gate women  to  record  —  stories  of  wives  accompanying  their 
husbands  in  suicide,  dying  with  them  in  proscriptions,  or  going 
with  them  into  exile.  Every  one  knows  of  Arria,  who  thrust  the 
dagger  first  into  her  own  bosom,  and  then  offered  it  to  her  hus- 
band, wdth  the  words,  "Paete,  non  dolet."  But  we  do  not  all 
know  that  she  became  a  kind  of  heroine  of  the  time,  and  upon  a 

^  Friedldnder,  "  Sittengesehiehte  Roms,"  i.  475.  Friedlander's  whole 
discussion,  pp.  475-507,  is  instructive,  if  somewhat  indecisive.  The 
judgment  of  Professor  Dill,  whose  work  has  appeared  since  the  above  was 
written,  is  more  clearly  favourable.     ("Roman  Society,"  pp.  77,  79,  145, 

etc.) 


Chap.  XV.]      WOMEN   AND   MARRIAGE   UNDER   CIVILIZATION  335 

gravestone  in  Anagnia  is  addressed  along  with  Laodamia  by  a 
woman  who  asks  her  to  receive  her  soul.^ 

The  evidence  of  the  tombstones,  which  in  all  ages  bear  a  singu- 
lar family  resemblance,  shows  that  the  domestic  ideal  held  sway 
under  the  free  manners  of  imperial  Rome,  as  under  the  masculine 
despotism  of  the  East  or  the  sentimentality  of  the  West.  A 
panegyric  on  Murdia  in  the  second  half  of  the  first  century  says 
all  gravestones  of  women  must  be  alike,  "because  their  virtues 
admit  of  no  heterogeneity,  and  it  is  enough  that  all  have  shown 
themselves  worthy  of  the  same  good  report."  "All  the  greater 
renown  has  my  dearest  mother  won,  who  has  equalled  and  in  no 
way  fallen  behind  other  women  in  modesty,  rectitude,  chastity, 
obedience,  household  work,  carefulness  and  loyalty."  Another 
inscription  says,  "She  was  of  pleasant  address  and  noble  gait, 
took  care  of  her  house  and  span."  In  another,  the  husband  has 
sworn  not  to  take  another  wife.  Another,  "  I  await  my  husband  "  ; 
another,  "Never  have  I  experienced  a  pain  from  thee,  except 
through  thy  death." 

Upon  the  whole  the  Roman  Matron  would  have  seemed  to  have 
retained  the  position  of  her  husband's  companion,  counsellor  and 
friend,  which  she  had  held  in  those  more  austere  times  when 
marriage  brought  her  legally  under  his  dominion. 

1  Friedldnder,  i.  514. 


Chapter  XVI 
CHILDREN   AND   THE   FAMILY  ^ 

1.  The  family  is  bound  up  with  the  institution  of  marriage : 
the  relation  of  children  to  their  parents  is  one  of  the  most  im- 
portant problems  of  humanity;  in  the  first  place,  because  the 
children  require  long  continued  training  and  education ;  and  then, 
because  the  preservation  of  the  family  tie,  even  after  the  children's 
education  is  completed,  is  of  the  highest  importance. 

2.  The  continuance  of  family  feeling  after  the  children  are 
grown  is  of  the  greatest  value  to  humanity;  indeed,  it  stands 
above  all  other  bonds.  On  the  one  side,  there  is  the  natural 
blood-tie,  on  the  other,  the  close  association  that  has  been  estab- 
lished during  the  years  of  education ;  both  together  produce  a 
natural  understanding,  a  harmony  of  conduct,  which  should  not 
be  lost,  but  should  be  cultivated  in  later  life  as  a  lasting  common 
tie  and  as  a  pledge  of  self-sacrificing  effort  for  humanity. 

3.  The  nature  of  family  feeling  will  differ,  according  to  whether 
it  is  the  relation  to  the  mother,  or  to  the  father,  that  is  determina- 
tive. We,  from  our  point  of  view,  combine  both  relations,  and 
can  scarcely  conceive  of  the  time  when  such  a  combination  was 
considered  impossible ;  and  yet  this  was  the  case.  As  the  mother 
and  father  belonged  to  different  families,  the  combination  of 
matriarchy  and  patriarchy  was  necessary  to  bring  the  child  within 
the  membership  of  both  families.  But  that  was  impossible  in 
times  when  each  family  lived  to  itself,  and  each  family  circle 
formed  a  separate  social  and  political  unit  which  maintained  its 
interests  one-sidedly,  and  expressed  them,  as  far  as  the  other 
families  were  concerned,  in  every  way,  even  in  disputes  and  war. 
The  struggles  of  those  ages  are  for  the  most,  family  wars,  family 
fighting  against  family,  f  nder  such  conditions  it  was,  if  not  in- 
conceivable, at  least  not  feasible  for  one  person  to  belong  to  more 

^  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law  " 
(Albrecht's  trans.),  Boston  Book  Compan3%  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

336 


Chap.  XVI.]  CHILDREN   AND   THE    FAMILY  337 

than  one  family,  and  hence  be  committed  to  both  sides  in  case 
of  war.  An  individual  who  belonged  to  more  than  one  family 
was  in  a  position  similar  to  the  sujet  mixte  of  today  who  belongs 
to  two  countries ;  a  state  of  things  which  does  indeed  exist,  which 
is  everywhere  regarded  as  deplorable,  and  to  be  avoided  if 
possible. 

4.  The  oldest  tie  was  that  of  the  child  to  the  mother  and  to 
the  maternal  family,^  which  is  easily  comprehensible ;  for  the  child 
is  borne  by  the  mother,  is  often  nourished  by  her  for  years,  and  in 
its  early  youth  is  entirely  in  her  care.  At  the  same  time,  the 
women  are  the  keepers  of  the  home ;  ,  whereas  the  men  wander 
about,  and  are  often  absent,  especially  in  times  of  war.  Under 
such  conditions,  matriarchy  is  the  only  rational  arrangement, 
and  it  was  therefore  formerly  quite  general.  Xot  until  later, 
especially  under  the  influence  of  wife-purchase  and  rape,  but  also 
for  other  reasons  which  will  be  discussed  elsewhere,  did  matriarchy 
give  way  to  patriarchy  and  the  child  belong  to  the  father  and  the 
father's  family.  This  was  the  plane  reached  by  the  cultural  legal 
systems  of  the  ancients,  in  Indian,  Greek,  Roman,  and  Germanic 
law,  and  the  law  of  the  Eastern  Asiatics ;  and  this  was  the  con- 
dition that  prevailed  during  the  time  that  the  greatest  formations 
of  culture  among  the  nations  were  accomplished. 

5.  Patriarchy  has  great  advantages  over  matriarchy.  Under 
the  latter  system,  the  child  belongs  to  the  mother,  but  it  also 
belongs  to  the  mother's  relatives ;  that  is,  to  those  who  have  the 
same  mother  as  the  child's  mother ;  hence,  especially,  to  her 
brothers,  so  that  the  relation  between  maternal  uncle  and  nephew 
is  the  closest  that  exists  between  two  men.  This  relation  is  a 
natural  one  only  if  the  mother  lives  with  her  brothers,  so  that 
brother,  sister  and  sister's  child  form  one  household.  But  such  a 
state  of  affairs  cannot  be  maintained ;  as  soon  as  the  peoples 
become  nomadic  and  consequently  scatter,  it  becomes  unendurable 
for  the  husband  to  stand  apart.  Then,  of  course,  if  the  repro- 
duction of  children  is  to  continue,  the  husband  must  live  with  his 
wife  and  child ;  the  uncle  on  the  other  hand  lives  perhaps  in  a 
quite  distant  district,  follows  other  aims,  and  has  no  intimate 
relations  with  them.  Under  such  conditions,  the  closer  the  mar- 
riage and  immediate  family  relation  becomes,  the  more  the  child, 
as  soon  as  it  needs  the  guidance  of  a  man's  hand,  will  attach  itself 
to  the  father,  and  the  more  contrary  to  nature  it  must  appear  if 

^  Only  the  complete  misunderstanding  of  ethnology  and  comparative 
legal  science  can  lead  to  a  contrary  assertion ;    refutation  is  superfluous. 


338  PEESONS  [Part  II. 

the  man  to  whom  the  child  turns  is  not  its  father.  If  the  father 
belongs  to  family  A,  the  child  to  family  B,  the  seeds  of  discord 
already  exist  in  the  heart  of  the  household  :  in  case  of  war  between 
the  two  families  father  and  son  stand  on  opposite  sides.  Such 
conflicts  in  a  circle  in  which  the  greatest  loyalty  and  undivided 
confidence  should  rule,  poison  the  whole  relationship  from  the 
beginning. 

Another  solution  would  only  be  possible,  if  the  wife  were  the 
head  of  the  house,  and  she  and  her  political  side  determined  the 
whole  relation.  This  system  has,  indeed,  existed;  it  is  called 
gynarchy,  but  it  has  always  been  rare,  and  was  soon  recognized 
as  contrary  to  nature.  Women  have  other  tasks  than  that  of 
ruling,  and  other  qualities  than  the  persevering  consistency  that 
the  life  of  a  ruler  demands.  Hence,  it  will  be  the  rule  for  the 
husband  to  be  the  head  of  the  house,  and  the  unnatural  condition 
that  arises  if  the  children  are  removed  from  his  circle  of  govern- 
ment will  alw^ays  be  felt  as  a  tremendous  hindrance  to  the  develop- 
ment of  family  life.  Therefore,  only  those  nations  in  which  the 
father's  right  was  paramount  have  been  capable  of  fulfilling  the 
higher  duties  of  national  life ;  they  alone  have  had  the  inherent 
strength  powerfully  to  resist  storms  from  within  and  without. 

6.  The  bringing  up  or  training  of  children  took  place  in  the 
family  from  the  beginning.  During  the  period  that  group-mar- 
riage was  general,  it  took  the  form  of  exchanging  children  to  a 
greater  or  less  extent,  so  that  one  or  another  member  of  the  group 
was  made  responsible  for  one  or  more  children.  When  monog- 
amy became  customary,  the  child  remained  with  its  parents,  and 
such  an  intimate  relation  between  them  and  the  children  was  thus 
developed  that  the  strongest  tie  was  formed.  The  unity  of 
blood  corresponded  to  the  unity  of  all  vital  relations. 

7.  It  is  therefore  comprehensible  that  history  long  preserved 
this  tie,  and  even  surrounded  it  with  the  glamor  of  poetry.  Even 
today,  the  relation  between  children  and  parents  is  one  of  the 
most  intimate  and  sacred ;  it  is  the  source  not  only  of  ethical 
dignity,  but  also  of  deep  moral  strength. 

8.  This  institution,  however,  is  not  adequate,  because  the  lofty 
ideals  that  underlie  the  whole  often  fail,  and  the  seeds  of  anti 
culture,  even  the  sources  of  vice  and  social  anarchy,  are  some 
times  found  in  the  heart  of  the  family  itself.     Wlien  this  is  the 
case  it  is  high  time  to  take  the  children  away  from  their  parents, 
and  to  put  their  training  into  the  hands  of  the  State. 

9.  A  number  of  nations,  even  in  earlier  times,  departed  from 


I 


Chap.  XVI.]  CHILDREN   AND   THE   FAMILY  339 

the  custom  of  famil}'  training,  and  introduced  another  kind 
which  may  be  divided  into  two  separate  systems : 

(a)  The  system  of  foster-paternity  (Pfiegvaterschaft)  :  an  altered 
system  of  family  training,  under  which  another  than  the  real 
family  of  the  children  was  made  responsible  for  them.  This  is 
justifiable  in  cases  where  there  is  serious  immorahty  in  the  family, 
or  when  exigencies  of  another  nature  prevent  the  family  from 
bringing  up  the  children.  But,  also,  in  other  circumstances,  this 
system  may  be  advisable ;  for  instance,  if  the  children  of  nobles, 
etc.,  are  to  be  brought  up  by  ordinary  citizens,  so  that  they  may 
learn  to  be  simple  and  thorough. 

(6)  Under  another  system,  the  children,  especially  the  boys, 
were  brought  up  by  the  State  and  the  temple,  so  that  from  their 
earliest  youth  their  patriotism  and  civic  responsibility  might  be 
developed,  and  that  b}'  strict  discipline  and  simple  living  they 
might  be  taught  to  serve  their  country  and  society. 

10.  The  modern  custom  of  giving  children  into  the  care  of  the 
State,  or  placing  them  in  other  families,  therefore,  easily  finds  a 
precedent  in  history;  and  in  this  connection,  too,  the  principle 
applies,  that  no  one  system  can  be  regarded  as  universally  bene- 
ficial. On  the  contrary,  sometimes  one  method,  sometimes  an- 
other will  best  fulfil  the  cultural  conditions  of  a  nation. 

11.  As  long  as  matriarchy  rules  there  will  be  no  difference 
between  legitimate  and  illegitimate  children.  And  even  under 
the  laws  of  patriarchy  the  principle  was  originally  upheld  that  a 
woman's  child  belonged  to  her  husband  irrespective  of  by  whom 
it  was  begotten.  Not  until  later  was  a  distinction  made  ;  and  the 
child  of  whom  the  woman's  husband  was  not  the  father  was  dis- 
owned. But,  if  a  child  was  born  before  marriage  (out  of  wed- 
lock), among  many  peoples  it  was  killed  (often  the  birth  was 
prevented  by  abortion),  or  the  child  belonged  to  the  mother's 
family  until  the  mother  married,  when  it  was  taken  into  the  new 
family.  Of  any  special  disregard  of  these  children  born  before 
marriage  there  is  originally  no  trace  whatever,  and  a  position 
equal  to  that  of  legitimate  children  was  not  refused  them,  until, 
in  times  of  patriarchy,  the  idea  gained  ground  that  not  every 
child  that  happened  to  come  into  the  marriage  was  to  be  con- 
sidered legitimate,  but  only  those  begotten  by  the  husband. 
The  consequence  was,  that  the  child  born  before  marriage,  like 
the  child  that  was  the  result  of  adultery,  remained  .outside  the 
husband's  family,  and  belonged  to  the  mother ;  the  rights  on  the 
maternal  side,  at  that  period,  however,  were  not  very  profitable, 


340  PERSONS  [Part  II. 

as  the  mother  did  not  inherit  much  and  was  restricted  to  the 
barest  necessaries. 

12.  In  later  times,  the  legitimate  child  occupied  another  posi- 
tion, when,  instead  of  patriarchy,  the  combined  right  of  the 
father  and  mother  was  established  (the  cognate  system).  The 
right  of  the  mother  then  became  more  important,  and  this  con- 
siderabh'  improved  the  position  of  the  illegitimate  child;  only 
the  relation  to  the  father  and  the  paternal  family  was  set  aside : 
otherwise  the  child  attained  the  complete  right  of  the  mother, 
and  this  at  a  time  when  matriarchy  was  again  a  ruling  power. 


^ 


I 


Chapter  XVII 

ADOPTION   AND   ARTIFICIAL   RELATIONSHIP 

Section  1 
SURVEY   OF  ARTIFICIAL   RELATIONSHIPS! 

(a)  General  Remarks. 

1.  Among  nearly  all  nations,  beside  the  actual  blood  relation- 
ship, an  artificial  relationship  has  been  recognized  involving  legal 
relations  equivalent  to  the  ties  of  blood.  A  more  detailed  presen- 
tation of  the  subject  belongs  to  the  history  of  law :  it  is  one  of 
the  most  interesting  pages  in  the  evolution  of  humanity. 

2.  We  need  only  emphasize  the  following  points  here : 

(a)  The  artificial  relationship  has  often  given  the  family  new 
vitality'  and  courage,  and  even  saved  whole  tribes  from  decline. 

(6)  As  in  all  important  legal  institutions,  religion  played  a  large 
part  in  establishing  the  artificial  relationship. 

(c)  Of  the  many  different  kinds  of  artificial  relationship,  foster 
paternity  has  already  been  mentioned.  ^Nlany  kinds  have  died 
out,  or  have  attained  importance  only  in  a  single  case  in  history 
(e.g.,  milk  relationship  in  Islam).  Two  forms  have  attained  uni- 
versal historical  importance,  adoption  and  blood-fraternity  (Bluts- 
briiderschaft) ,  of  which,  however,  the  latter  has  disappeared  from 
modern  civilization. 

(6)  Adoption. 

1.  Adoption  is  an  institution  of  high  morality;  for  the  love 
between  parent  and  child  is  of  the  highest  ethical  and  educative 
value,  a  source  of  pure  feelings,  the  starting  point  of  devoted  effort, 
an  incentive  to  high  moral  endeavor,  and  thus  in  itself  produces 
and  furthers  culture.  It  is  just  in  the  soil  of  such  feelings  that 
the  most  important  ideas  germinate,  spring  up,  and  bear  the  richest 
fruit.     Moreover,  the  foster  child  that  thus  receives  a  better  edu- 

!  [Reprinted, by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
{AlbrechVs  trans.),  Boston  Book  Company,  191-4  (Philosophy  of  Law 
Series,  Vol.  XII).] 

341 


342  PERSONS  [Part  II. 

cation  and  training,  usually  is  more  efficient  than  if  it  were  left 
in  disadvantageous  circumstances  where  it  might  come  to  an  evil 
end. 

2.  It  is  true  that  adoption  would  be  possible  without  the  law ; 
it  is  possible  for  anyone  to  take  a  foster  child  without  any  legal 
relation  and  devote  himself  to  it ;  but  the  legal  activity  of  such  a 
relation  has  a  far-reaching  and  very  considerable  psychic  influence. 
What,  otherwise,  only  occurs  occasionally  and  uncertainly,  thus 
becomes  a  regular  institution  ;  the  child  that  thus  acquires  rights, 
has  a  much  better  position  than  if  it  were  dependent  on  whim. 
Particularly,  it  is  spared  the  unhappy  fate,  after  the  death  of  its 
benefactor,  of  being  turned  out  and  deprived  of  maintenance, 
property,  and  inheritance. 

3.  Adoption  may  be  so  carried  out  that  the  child  is  taken  away 
from  its  own  family,  and  becomes  a  member  of  the  family  that 
adopts  it.  This  is  desirable  as  long  as  there  is  strong  family 
cohesion ;  for  a  double  family  membership  in  such  cases  is  dis- 
advantageous, and  places  the  child  in  a  situation  in  which  it 
cannot  thrive. 

It  is  different  where  family  cohesion  is  loose  so  that  a  number 
of  educational  advantages  are  required  outside  of  the  family,  in 
society  and  in  the  State,  from  the  fact  that  family  relationship 
involves  its  members  only  in  certain  directions. 

When  this  is  the  case,  the  retention  of  certain  rights  in  the 
child's  own  family  is  not  only  possible,  but  desirable :  there  is  no 
reason  for  depriving  anyone  of  more  than  is  necessary  to  accom- 
plish certain  ends.  Hence  modern  law  has  led  to  the  introduction 
of  a  system  of  incomplete  adoption,  under  which  the  adopted  child 
retains  as  many  rights  as  possible  in  its  own  family,  and  receives 
in  addition  its  adoptive  rights. 

4.  A  further  question  concerns  whether  the  child  enters  into  a 
relation  only  with  the  father  that  adopts  it,  or  also  with  the  father's 
family.  Modern  legal  systems  have  denied  the  latter,  in  con- 
sideration of  the  fact  that  the  child  retains  rights  in  its  own  family. 
It  would,  however,  be  perfectly  conceivable,  and  not  without 
value,  if,  by  a  joint  family  resolution  or  something  of  the  sort, 
the  adopted  child  should  also  be  granted  rights  as  regards  the 
other  members  of  the  family.  The  adopted  child  would  thus  be 
received  into  the  whole  family  connection ;  as  was  the  case,  for 
instance,  in  the  "  Aetleidung'^  of  the  old  Norse  law. 

5.  With  the  growth  of  the  system  of  incomplete  adoption,  an- 
other principle  has  also  been  developed :  that  the  effects  of  adop- 


Chap.  XVII,  §  1.]      ADOPTION   AND   ARTIFICIAL   RELATIONSHIP  343 

tion  are  one-sided,  inasmuch  as  the  child  is  indeed  subject  to 
parental  authority  in  the  family  that  adopts  him ;  but,  in  other 
respects,  he  alone  acquires  rights,  while  the  father  b}'  adoption 
and  his  family  have  no  further  claim  on  the  child.  Here,  too,  it 
might  be  asked,  whether  it  would  not  be  desirable  to  extend  this 
arrangement ;  for  without  doubt  the  connection  becomes  closer 
when  claims  exist  on  both  sides.  It  is  true  that  this  would  also 
have  its  disadvantages,  since  adoption  might  thus  become  a  matter 
for  speculation,  so  that  motives  of  avarice  might  find  a  footing, 
and  corrupt  this  beneficial  institution.  This  danger,  however, 
might  be  a^•erted  by  careful  examination  into  each  case,  and  pos- 
sible prohibition  on  the  part  of  the  authorities. 
(c)  Blood-Fraternity. 

1.  As  an  artificial  relationship,  blood-fraternity  has  played  an 
important  part  in  the  life  of  nations.  The  original  idea  was  that 
the  "blood-brothers"  were  closer  to  each  other  than  real  brothers, 
and  the  institution  has  been  a  source  of  the  finest  self-sacrifice,  of 
ennoblement,  of  mutual  devotion,  of  the  purest  unselfishness.^ 

2.  Unfortunately,  the  legal  institution  has  died  out ;  it  was 
much  used,  and  also  much  abused ;  it  became  the  spring  that  set 
kin-revenge  in  motion,  a  means  of  furthering  rebellious  acts,  and 
the  connecting  element  in  wild  and  destructive  societies. 

Nevertheless,  its  disappearance  is  greatly  to  be  regretted,  for 
such  an  incentive  to  unselfishness,  such  an  aid  in  all  the  conditions 
of  life,  must  always  be  recognized  as  promoting  culture ;  just  as 
any  ideal  in  itself  strengthens  the  cultural  power  of  a  people,  in 
so  far  as  it  is  not  too  closely  mixed  with  destructive  elements. 

3.  Here,  too,  we  must  repeat,  that  such  a  psychic  relation  can 
exist  without  legal  protection  or  legal  form.     But  what  was  said 

1  [Captain  Guy  Burroios  ("The  Land  of  the  Pigmies,"  Crowell  & 
Co.,  N.  Y.,  1898  (?)  )  gives  the  following  account  of  the  ceremony  of 
blood-brotherhood :"  In  the  open  air,  and  in  the  presence  of  all  the  as- 
sembled chiefs  and  people,  I  was  seated  opposite  my  prospective  brother. 
A  small  incision  was  made  in  each  of  our  forearms,  from  which  a  little  blood 
oozed.  The  proper  performance  would  have  been  for  each  of  us  to  lick  the 
blood  of  the  other,  but  on  this  occasion  we  decided  to  dispense  with  that 
part  of  the  rite,  merely  rubbing  the  cuts  one  against  the  other,  and  thus 
commingling  our  blood.  When  this  was  done  the  representative  of  my 
'  brother '  began  to  beat  two  pieces  of  metal  together  keeping  up  a  mo- 
notonous tink,  tink,  tink.  He  recited  a  sort  of  commination  service  :  '  If  you 
ever  make  war  on  me,  if  you  ever  steal  from  me,  if  you  ever  wound  me,  etc., 
etc.,  may  you  die!  '  This  is  a  good  opportunity  for  him  in  case  he  may 
want  to  get  anything  from  you,  so  his  incantation  often  contains  such 
threats  as,  '  If  you  do  not  give  me  plenty  of  guns,  may  you  die ! '  After 
this,  a  similar  performance  was  gone  through  by  my  representative,  whose 
business  it  was  to  nullify  my  new  brother's  subtle  demands.  Finally  the 
compact  was  sealed  by  an  exchange  of  small  presents."] 


344  PERSONS  [Part  II. 

of  adoption  also  applies  in  this  case.  It  is  of  far-reaching  impor- 
tance, when  the  law  takes  hold  of,  and  shapes  such  institutions ; 
they  thereby  become  normal,  and  lose  their  exceptional  character, 
and  their  significance  is  greatly  enhanced,  if  what  one  man  expects 
from  another  is  also  required  by  law.  The  rigid  legal  manner  of 
creating  and  dissolving  the  relation  gives  it  support  and  strength, 
and  especially  a  series  of  important  legal  consequences  may  thus 
follow,  as,  for  instance,  if  a  blood-brother  is  privileged  to  refuse 
his  testimony,  or  if  the  shielding  of  a  blood-brother  is  as  unpunish- 
able as  that  of  a  real  relation,  or  if  the  duty  of  mutual  support, 
and  perhaps  also  a  right  of  inheritance  exist.  In  all  such  cases, 
the  law  may  be  appealed  to,  and  the  uncertainty  and  vagueness 
of  relations  that  exist  merely  in  fact  are  removed  by  legal  regulation. 
4.  Will  this  institution  perhaps  be  revived?  Unless  there  is 
something  in  life  tliat  supports  them,  such  customs  cannot  be 
created ;  the  ardor  and  enthusiasm  that  lead  to  such  an  ideal 
cannot  be  artificially  produced;  they  must  proceed  from  within 
the  nation. 

Section  2 

RELIGIOUS   BASIS    OF   ADOPTION! 

The  duty  of  perpetuating  the  domestic  worship  was  the  founda- 
tion of  the  law  of  adoption  among  the  ancients.  The  same  re- 
ligion which  obliged  a  man  to  marry,  which  pronounced  a  divorce 
in  case  of  sterility,  which,  in  case  of  impotence  or  of  premature 
death,  substituted  a  relative  in  place  of  the  husband,  still  offered 
to  a  family  one  final  resource  to  escape  the  so  much  dreaded  mis- 
fortune of  extinction ;  this  resource  was  the  right  of  adoption. 
"He  to  whom  nature  has  denied  a  son  can  adopt  one,  so  that  the 
funeral  ceremonies  may  not  cease."  Thus  speaks  the  old  legis- 
lator of  the  Hindus.^  We  have  a  curious  plea  of  an  Athenian  ora- 
tor in  a  case  where  the  legitimacy  of  a  son's  adoption  was  contested. 
The  defendant  shows  us  first  the  motive  for  which  one  adopted  a 
son.  "Menecles,"  he  says,  "did  not  wish  to  die  without  children  ; 
he  was  desirous  of  leaving  behind  him  some  one  to  bury  him,  and 
in  after  time  to  perform  the  ceremonies  of  the  funeral  worship." 
He  then  goes  on  to  show  what  will  happen  if  the  tribunal  annuls 
his  adoption ;   what  will  happen,  not  only  to  himself,  but  to  the 

MBy  PusTEL  DE  CoTJLANGEs,  "The  Ancient  City";  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

2  "Laws  of  Manu,"  IX.  10. 


Chap.  XVII,  §  2.]      ADOPTION   AND   ARTIFICIAL   RELATIONSHIP  345 

one  who  has  adopted  him.  Menecles  is  dead,  and  still  it  is  the 
interest  of  Menecles  that  is  at  stake.  "  If  you  annul  my  adoption, 
you  will  leave  IMenecles,  who  is  dead,  without  a  son ;  and  conse- 
quently no  one  will  perform  the  sacrifices  in  his  honor,  no  one 
will  offer  him  the  funeral  repast,  and  thus  he  will  be  without 
worship."  ^ 

To  adopt  a  son,  was  then,  to  watch  over  the  perpetuity  of  the 
domestic  religion,  the  safety  of  the  sacred  fire,  the  continuation  of 
the  funeral  offerings,  and  the  repose  of  the  manes  of  the  ancestors. 
There  being  no  reason  for  adoption,  except  the  necessity  of  pre- 
venting the  extinction  of  a  worship,  it  was  permitted  only  to  one 
who  had  no  son.  The  law  of  the  Hindus  is  formal  on  this  point.^ 
That  of  the  Athenians  is  not  less  so ;  all  the  orations  of  Demos- 
thenes against  Leochares  are  proof  of  this.^  No  particular  passage 
proves  that  this  was  the  case  in  the  old  Roman  law,  and  we  know 
that  in  the  time  of  Gaius  a  man  might  have  at  the  same  time  sons 
by  nature  and  sons  by  adoption.  It  appears,  however,  that  this 
point  was  not  admitted  as  legal  in  Cicero's  time ;  for  in  one  of  his 
orations  the  orator  expresses  himself  thus  :  "  What  is  the  law  con- 
cerning adoption?  Why,  that  he  may  adopt  children  who  is  no 
longer  able  to  have  children  himself,  and  who  failed  of  having  them 
when  he  was  of  an  age  to  expect  it.  To  adopt  is  to  seek,  by  regular 
and  sacerdotal  law,  that  which  by  the  ordinary  process  of  nature 
he  is  no  longer  able  to  obtain."  "^  Cicero  attacks  the  adoption  of 
Clodius,  taking  the  ground  that  the  man  who  has  adopted  him 
already  has  a  son,  and  he  declares  that  this  adoption  is  contrary  to 
sacerdotal  law. 

When  a  son  was  adopted,  it  was  necessary,  first  of  all,  that  he 
should  be  initiated  into  a  form  of  worship,  "introduced  into  a 
domestic  religion,  brought  into  the  presence  of  new  Penates."  ^ 
Adoption,  therefore,  was  accompanied  by  a  ceremony  very  like 
that  which  took  place  at  the  birth  of  a  son.  In  this  way  the  new 
comer  was  admitted  to  the  hearth,  and  associated  in  the  new 
religion.  Gods,  sacred  objects,  rites,  prayers,  all  became  common 
between  him  and  his  adopted  father.  They  said  of  him.  In  sacra 
transiit  —  He  has  passed  to  the  worship  of  the  new  family.^ 

1  Is(vus,  II.  10-46. 

-  "Lawsof  Manu,"  X.  168,  174.  ^'Dattaca-Sandrica,"  Onan?ie's  trans., 
p.  260. 

•'  See  also  Jsceua,  II.  11-14. 

*  Cicero,  "Pro  Domo,"  13,  14.     Aulus  Gellius,  V.  19. 

5 'Eiri  TO.  iepa  dyeiv,  Is(Bus,  VII.  "Venire  in  Sacra,"  Cicero,  "Pro 
Domo,"  13;    "in  Penates  adsciscere,"  Tacitus,  "Hist.,"  I.  15. 

8  Valerius  Maximus,  VII.  7. 


346  PERSONS  [Part  II. 

By  this  very  ceremony  he  renounced  the  worship  of  the  old  one.^ 
We  have  seen,  indeed,  that  according  to  this  ancient  behef,  the 
same  man  could  not  sacrifice  at  two  hearths,  or  honor  two  series  of 
ancestors.  Admitted  to  a  new  house,  the  old  became  foreign  to 
him.  He  no  longer  had  anything  in  common  with  the  hearth  near 
which  he  was  born,  and  could  no  longer  offer  the  funeral  repast 
to  his  own  ancestors.  The  ties  of  birth  were  broken  ;  the  new  tie 
of  a  common  worship  took  the  ascendency.  The  man  became  so 
completely  a  stranger  to  his  own  family,  that,  if  he  happened  to 
die,  his  natural  father  had  no  right  to  take  charge  of  the  funeral, 
or  to  conduct  the  procession.  The  adopted  son  could  not  return 
again  to  the  old  family ;  or,  at  most,  the  law  permitted  this  only 
when,  having  a  son,  he  left  that  son  to  take  his  place  in  the  adoptive 
family.  They  considered  that,  the  perpetuity  of  this  family  being 
thus  assured,  he  might  leave  it;  but,  in  this  case,  he  severed  all 
the  ties  that  bound  him  to  his  own  son.- 

Emancipation  corresponded,  as  a  correlative,  to  adoption.  In 
order  that  a  son  might  enter  a  new  family,  it  was  necessary  that  he 
should  be  able  to  leave  the  old ;  that  is  to  say,  that  he  should  be 
emancipated  from  its  religion.^  The  principal  effect  of  emanci- 
pation was  the  renunciation  of  the  worship  of  the  family  in  which 
one  was  born.  The  Romans  designated  this  act  by  the  very  sig- 
nificant name  of  sacroruvi  detestatio.^ 

1  "  Amissis  sacris  paternis,"  Cicero,  ibid. 

^  Ismis,  VI.  44;  X.  11.  Demosthenes,  "against  Leoehares."  Anti- 
phon.,  "Frag.,"  15.     Comp.  "Laws  of  Manu,"  IX.  142. 

3  "  Consuetude  apud  antiquos  fuit  ut  qui  in  familiam  transiret  prius  se 
abdicaret  ab  ea  in  qua  natus  fuerat."     Servius,  "ad  J^ln.,"  II.  156. 

4  Aulus  Gellius,  XV.  27. 


b 


ClL^PTER    XVIII 

SLAVERY 

Section  1 
HISTORICAL   IMPORTANCE   OF   SLAVERY  i 

1.  Slavery  is  not,  as  might  be  supposed,  evidence  that  culture 
is  lacking,  but  exhibits  considerable  economic  progress;  for  in 
periods  in  which  economic  life  is  but  slightly  developed,  no  need 
of  slaves  is  felt.  The  household  is  limited  in  accordance  with  the 
needs  of  the  family  and  the  addition  of  servants  would  mean  only 
the  increase  of  family  cares  and  would  make  it  necessary  to  divide 
the  meager  proceeds  of  industry  among  a  greater  number  of  con- 
sumers than  formerly.  It  is  not  until  there  is  a  more  developed 
and  growing  agricultural  or  industrial  life  that  the  need  is  felt  of 
slaves  as  workers  in  agricultural  or  industrial  pursuits.  But  when 
once  this  point  is  reached,  the  need  of  slavery  is  so  strong  that  the 
people  would  risk  everything  in  order  to  add  to  their  working 
force  in  this  way.  Wars  are  carried  on  for  the  sake  of  taking 
slaves,  raids  are  made,  or  people  belonging  to  some  particular 
class  are  oppressed,  tormented,  and  driven  by  various  economic 
abuses  into  becoming  slaves  and  rendering  a  slave's  obedience  and 
service. 

2.  However,  slavery  has  still  another,  a  religious  significance : 
the  human  sacrifice  is  generally  a  sacrifice  of  slaves.  Slaves  have 
been  kept  for  the  special  purpose  of  being  slaughtered  as  a  sacrifice 
to  gods  or  spirits,  walled  up  when  a  house  was  being  built,  or 
offered  to  the  gods  of  the  harvest  before  a  new  field  was  planted. 

3.  Before  the  rise  of  technical,  especially  of  industrial  arts, 
slavery  was  the  only  means  of  obtaining  a  division  of  labor  on  a 
large  scale  in  a  uniform  undertaking,  for  works  of  that  kind 
require  distinct  subordination,  monotonous  and  steady  exertion, 

^  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

M7 


348  PERSONS  [Past  II. 

tasks  which  the  workman  dislikes,  and  absolute  discipline  and 
order,  such  as  were  impossible  among  free  persons  in  those  times. 
Even  the  oarsman  in  the  rowing  bank  could  scarcely  be  a  free 
person;  for  everywhere  that  enterprises  requiring  mass  labor 
were  set  on  foot,  slaves  could  not  be  dispensed  with,  since  machines 
were  wholly  lacking. 

4.  Hence,  no  one  who  looks  at  the  matter  entirely  from  the 
standpoint  of  our  day,  or  of  human  rights,  will  be  able  to  appre- 
ciate slavery  in  its  historical  development.  Human  rights  are 
not  advantageous  to  every  development :  technical  arts  must 
advance,  humanity  must  make  progress  in  industrial  life  and  for 
centuries  this  goes  on  with  the  sacrifice  of  human  life.  The  sacri- 
fice to  culture  is  the  highest  sacrifice  that  the  individual  can  make, 
but  it  is  also  one  that  he  must  make. 

5.  Slavery  may  develop  into  semi-slavery  or  bondage : 

(a)  One  kind  of  bondage  is  pledge  service  {Pfandlingschaft)  in 
which  the  debtor  works  off  his  debt ;  as  he  is  only  temporarily  a 
slave,  his  lot  is  lightened.  He  is  bound  to  service  but  is  not  with- 
out rights. 

(b)  Also  in  other  case,  however,  experience  has  taught  that  a 
slave  will  do  more  if  his  interest  is  aroused  and  he  is  given  a  "  pe- 
culium"  which  he  may  use,  or  own,  or  partly  own.  Thus  it  is  in 
agriculture  where  the  slave  is  allowed  to  possess  a  small  tract  of 
land ;  thus,  too,  it  is  in  trade  and  commerce :  he  has  then  to  pay 
his  lord  a  certain  annual  fee. 

(c)  Certain  circumstances  lighten  the  slave's  condition : 

(aa)  The  possibility  of  buying  his  freedom  develops.  As  soon 
as  the  slave  appears  as  so  much  capital,  the  interest  on  which  is 
represented  by  his  annual  service,  the  thought  immediately 
follows  that  he  can  substitute,  for  himself  to  his  master,  capital  in 
money :   the  sum  with  which  he  purchases  his  freedom. 

(bb)  The  female  slave  is  often  the  concubine  of  her  master ;  she 
and  her  offspring  therefore  attain  a  better  position.  The  sexual 
relation  here,  as  everywhere,  is  connected  with  strong  psychic 
influence  :  the  lord  does  not  want  his  concubine  to  become  another's 
slave  after  his  death.  Therefore  she  becomes  free  when  he  dies, 
and  her  children  are,  if  not  entirely  free,  at  least  half-free. 

(cc)  The  slave  is  allowed  to  have  his  wife  and  family.  Thus 
family  life  develops :  the  family  is  not  to  be  separated,  its  circle 
shall  not  be  interfered  with. 

(dd)  The  house  slaves  become  a  part  of  the  household,  and  the 
intimacy  and  confidence  that  thus  grows  up  between  them  and 


Chap.  XVIII,  §  1.]  SLAVERY  349 

the  family  make  them  indispensable ;  often  the  family  is  at  the 
mercy  of  their  loyalty  and  discretion. 

{ee)  Slaves  even  play  a  political  part.  They  conduct  the  most 
important  and  responsible  affairs  and  thus  attain  a  firm  and  un- 
shakable position. 

(Jf)  Note  should  be  taken,  also,  of  the  Bondo-Recht,  that  is  the 
competency  of  the  slave  to  change  his  master  if  he  wishes. 

6.  With  the  coming  of  semi-slavery  the  following  changes  occur  : 
the  slaves  become  free  in  principle,  and  the  services  that  they  are 
required  to  perform  take  on  another  aspect.  Such  services  are 
then  no  longer  borne  in  the  consciousness  of  bondage,  but  are 
regarded  as  imposed  tasks  which  encumber  the  slave  class  and 
against  which  class  feeling  gradually  comes  to  rebel.  The  place 
of  the  agricultural  slaves  is  filled  by  free  peasants,  that  of  the 
artisan  slaves  by  technical  workmen  —  with  the  cessation  of  their 
special  duties  and  liabilities  they  join  the  middle  class.  Work 
now  becomes  ennobled. 

7.  To  this  appreciation  of  work  the  ancients  attained  only  in 
exceptional  cases ;  this  is  shown  especially  in  Aristotle's  "  Politics," 
who,  by  the  way,  had  a  deep  historical  comprehension  of  the  whole 
question  of  slavery. 

He  fully  recognized  that  in  the  industrial  life  of  the  ancients 
slavery  was  a  necessity;  and  his  famous  assertion,  that  if  the 
weaver's  shuttle  worked  of  itself,  no  more  slaves  would  be  neces- 
sary, is  the  best  explanation  of  the  whole  institution.  Yet,  we 
must  reply  to  this  ancient  thinker  that  physical  labor,  especially 
if  it  is  carried  out  with  care,  attention,  and  skill,  and  if  the  work- 
man has  a  psj'chic  interest  in  the  result,  so  that  he  works  with 
body  and  mind,  by  no  means  lacks  nobility  and  dignity.  Conse- 
quently, from  our  point  of  view^  it  is  wrong  to  say  that  persons 
who  perform  physical  labor  must  be  without  rights,  so  that  they 
may  be  regarded  only  as  the  organs  and  tools  of  their  master. 
Moreover,  Aristotle  too  admits  that  a  distinction  must  be  made 
between  slavedom  {Skiaventum)  as  a  natural  institution,  and  actual 
slavery,  and  that  it  by  no  means  follows  that  all  those  persons 
who  were  slaves  according  to  the  law  were  also  destined  by  nature 
to  be  slaves. 


350  PERSONS  [Part  II. 

Section  2 

THEORIES   OF    SLAVERY  i 

The  Law  of  Persons  contains  but  one  other  chapter  which  can  be 
usefully  cited  for  our  present  purpose.  The  legal  rules  by  which 
systems  of  mature  jurisprudence  regulate  the  connection  of  Master 
and  Slave,  present  no  very  distinct  traces  of  the  original  condition 
common  to  ancient  societies.  But  there  are  reasons  for  this 
exception.  There  seems  to  be  something  in  the  institution  of 
Slavery  which  has  at  all  times  either  shocked  or  perplexed  mankind, 
however  little  habituated  to  reflection,  and  however  slightly  ad- 
vanced in  the  cultivation  of  its  moral  instincts.  The  compunc- 
tion which  ancient  communities  almost  unconsciously  experienced 
appears  to  have  always  resulted  in  the  adoption  of  some  imaginary 
principle  upon  which  a  defence,  or  at  least  a  rationale,  of  slavery 
could  be  plausibly  founded.  Very  early  in  their  history  the  Greeks 
explained  the  institution  as  grounded  on  the  intellectual  inferiority 
of  certain  races,  and  their  consequent  natural  aptitude  for  the  ser- 
vile condition.  The  Romans,  in  a  spirit  equally  characteristic, 
derived  it  from  a  supposed  agreement  between  the  victor  and  the 
vanquished,  in  which  the  first  stipulated  for  the  perpetual  ser- 
vices of  his  foe,  and  the  other  gained  in  consideration  the  life 
which  he  had  legitimately  forfeited.  Such  theories  were  not  only 
unsound  but  plainly  unequal  to  the  case  for  which  they  affected  to 
account.  Still  they  exercised  powerful  influence  in  many  ways. 
They  satisfied  the  conscience  of  the  INIaster.  They  perpetuated 
and  probably  increased  the  debasement  of  the  Slave.  And  they 
naturally  tended  to  put  out  of  sight  the  relation  in  which  servitude 
had  originally  stood  to  the  rest  of  the  domestic  system.  This 
relation,  though  not  clearly  exhibited,  is  casually  indicated  in  many 
parts  of  primitive  law,  and  more  particularly  in  the  typical  system 
—  that  of  ancient  Rome. 

Much  industry  and  some  learning  have  been  bestowed  in  the 
United  States  of  America  on  the  question  whether  the  Slave  was 
in  the  early  stages  of  society  a  recognised  member  of  the  Famih'. 
There  is  a  sense  in  which  an  affirmative  answer  must  certainly  be 
given.  It  is  clear,  from  the  testimony  both  of  ancient  law  and  of 
many  primeval  histories,  that  the  Slave  might  under  certain 
conditions  be  made  the  Heir,  or  Universal  Successor,  of  the  ]\Iaster, 

1  [By  Sir  Henry  S.Maine.  Reprinted  from  ^'Ancient  Law,"  by  per- 
mission of  Henry  Holt  and  Company,  New  York.] 


Chap.  XVIII,  §  2.]  SL^WERY  351 

and  this  significant  faculty,  as  I  shall  explain  in  the  Chapter  on 
Succession,  implies  that  the  Government  and  representation  of  the 
Family  might,  in  a  particular  state  of  circumstances,  devolve  on  the 
bondman.  It  seems,  however,  to  be  assumed  in  the  American 
arguments  on  the  subject  that,  if  we  allow  Slavery  to  have  been  a 
primitive  Family  institution,  the  acknowledgment  is  pregnant  with 
an  admission  of  the  moral  defensibility  of  Xegro-servitude  at  the 
present  moment.  \Miat  then  is  meant  by  saying  that  the  Slave 
was  originally  included  in  the  Family?  Not  that  his  situation 
may  not  have  been  the  fruit  of  the  coarsest  motives  which  can 
actuate  man.  The  simple  wish  to  use  the  bodily  powers  of  an- 
other person  as  a  means  of  ministering  to  one's  own  ease  or  pleas- 
ure is  doubtless  the  foundation  of  Slavery,  and  as  old  as  human 
nature.  ^Vhen  we  speak  of  the  Slave  as  anciently  included  in  the 
Family,  we  intend  to  assert  nothing  as  to  the  motives  of  those  who 
brought  him  into  it  or  kept  him  there ;  we  merely  imply  that  the 
tie  which  bound  him  to  his  master  was  regarded  as  one  of  the  same 
general  character  with  that  which  united  every  other  member  of 
the  group  to  its  chieftain.  This  consequence  is,  in  fact,  carried 
in  the  general  assertion  already  made,  that  the  primitive  ideas  of 
mankind  were  unequal  to  comprehending  any  basis  of  the  connec- 
tion inter  se  of  individuals,  apart  from  the  relations  of  family. 
The  Family  consisted  primarily  of  those  who  belonged  to  it  by 
consanguinity,  and  next  of  those  who  had  been  engrafted  on  it  by 
adoption ;  but  there  was  still  a  third  class  of  persons  who  were 
only  joined  to  it  by  common  subjection  to  its  head,  and  these  were 
the  Slaves.  The  born  and  the  adopted  subjects  of  the  chief  were 
raised  above  the  Slave  by  the  certainty  that  in  the  ordinary  course 
of  events  they  would  be  relieved  from  bondage  and  entitled  to 
exercise  powers  of  their  own  ;  but  that  the  inferiority  of  the  Slave 
was  not  such  as  to  place  him  outside  the  pale  of  the  Family,  or 
such  as  to  degrade  him  to  the  footing  of  inanimate  property,  is 
clearly  proved,  I  think,  by  the  many  traces  which  remain  of  his 
ancient  capacity  for  inheritance  in  the  last  resort.  It  would,  of 
course,  be  unsafe  in  the  highest  degree  to  hazard  conjectures  how 
far  the  lot  of  the  Slave  was  mitigated,  in  the  beginnings  of  society, 
by  having  a  definite  place  reserved  to  him  in  the  empire  of  the 
Father.  It  is,  perhaps,  more  probable  that  the  son  was  practically 
assimilated  to  the  Slave,  than  that  the  Slave  shared  any  of  the 
tenderness  which  in  later  times  was  shown  to  the  son.  But 
it  may  be  asserted  with  some  confidence  of  advanced  and  matured 
codes  that,  wherever  servitude  is  sanctioned,  the  Slave  has  uni- 


352  PERSONS  [Part  II. 

formly  greater  advantages  under  systems  which  preserve  some 
memento  of  his  earlier  condition  than  under  those  which  have 
adopted  some  other  theory  of  his  civil  degradation.  The  point  of 
view  from  which  jurisprudence  regards  the  Slave  is  always  of  great 
importance  to  him.  The  Roman  law  was  arrested  in  its  growing 
tendency  to  look  upon  him  more  and  more  as  an  article  of  property 
by  the  theory  of  the  Law  of  Nature ;  and  hence  it  is  that,  wherever 
servitude  is  sanctioned  by  institutions  which  have  been  deeply 
affected  by  Roman  jurisprudence,  the  servile  condition  is  never 
intolerably  wretched.  There  is  a  great  deal  of  evidence  that  in 
those  American  States  which  have  taken  the  highly  Romanised 
code  of  Louisiana  as  the  basis  of  their  jurisprudence,  the  lot  and 
prospects  of  the  Negro-population  were  better  in  many  material 
respects,  until  the  letter  of  the  fundamental  law  was  overlaid  by 
recent  statutory  enactments  passed  under  the  influence  of  panic, 
than  under  institutions  founded  on  the  English  Common  Law, 
which,  as  recently  interpreted,  has  no  true  place  for  the  Slave, 
and  can  only  therefore  regard  him  as  a  chattel. 


» 


Chapter   XIX 

CAPITIS  DEMINUTIQJ 

Capitis  deminiitio  is  the  destruction  of  the  'caput'  or  legal 
personality.  Capitis  deminutio,  so  to  speak,  wipes  out  the  former 
individual  and  puts  a  new  one  in  his  place,  and  between  the  old  and 
the  new  individual  there  is,  legally  speaking,  nothing  in  common. 
A  juristic  personality  may  be  thus  destroyed  in  one  of  three  ways : 

(1)  by  loss  of  the  status  libertatis.  This  is  the  capitis  deminutio 
maxima ; 

(2)  by  loss  of  the  status  civitatis.  This  is  the  capitis  deminutio 
media  (magna) ; 

(3)  by  severance  from  the  agnatic  family.  This  entails  capitis 
deminutio  minima. 

Capitis  deminutio  maxima  means  the  loss  of  a  man's  entire 
juristic  personality.  Capitis  deminutio  media  and  minima  merely 
mean  the  loss  of  the  particular  juristic  personality  which  a  man  has 
hitherto  possessed. 

To  undergo  capitis  deminutio  maxima  is  to  forfeit  one's  liberty. 
A  Roman  civis  may,  like  others,  become  a  slave,  e.g.  if  he  is  con- 
demned for  a  crime,  or  taken  a  prisoner  of  war.  If,  however,  a 
Roman  citizen  returns  from  captivity,  he  becomes,  at  the  moment 
of  his  return,  a  Roman  citizen  again  and  recovers  all  those  rights 
which  he  had  forfeited  by  his  capitis  deminutio  in  just  the  same 
manner  as  though  he  had  never  lost  them.  He  becomes  once  more 
the  paterfamilias  of  his  children,  the  owner  of  his  property,  the 
creditor  of  his  debtors,  and  so  on.  In  a  word,  he  becomes  the 
subject  of  all  the  legal  relations  which  his  captivity  had  extin- 
guished for  him,  to  the  same  extent  as  though  he  had  never  been  a 
prisoner  of  war  at  all.  This  is  the  nature  of  the  so-called  'jus 
postliminii.'  Let  us  suppose,  however,  that  the  Roman  civis  in 
question  does  not  return,  but  dies  in  captivity.  At  the  time  of  his 
death  he  is  clearly  not  a  civis  Romanus,  but  a  slave.     Is  then  the 

'  [By  Rudolph  Sohm.  Reprinted  by  permission  from  ''The  Institutes 
of  Roman  Law  "  (Ledlic's  trans.),  Oxford  University  Press,  1892.] 

353 


354  PERSONS  [Part  II. 

will  which  he  executed  at  home,  before  he  was  taken  prisoner,  void 
or  not  ?  And,  to  go  a  step  further,  since  a  slave  cannot  have  any 
heirs,  can  he  (the  prisoner)  have  heirs  or  not?  All  these  diffi- 
culties were  solved  by  the  so-called  'fictio  legis  Corneliae,'  by  which 
a  Roman  civis,  dying  in  captivity,  is  assumed  by  a  fiction  to  have 
died  a  Roman  citizen ;  consequently  (argued  the  jurists),  he  shall 
be  deemed  to  have  died  at  the  very  moment  of  being  taken  prisoner. 

Capitis  deminutio  media  (or  magna)  is  loss  of  citizenship  un- 
accompanied by  loss  of  liberty ;  it  occurs  e.g.  when  a  Roman 
citizen  emigrates  to  a  Latin  colony.  But  in  Justinian's  time,  since 
every  member  of  the  Roman  empire  who  was  free  was,  at  the  same 
time,  a  Roman  citizen,  media  capitis  deminutio  is  only  possible  in 
the  case  of  banishment,  i.e.  expulsion  from  membership  of  the 
empire. 

Severance  from  one's  agnatic  family  also  operates  as  a  capitis 
deminutio  {viz.  minima),  a  destruction  of  one's  personality.  For 
it  is  in  the  family  that  the  essence  and  force  of  a  legal  personality 
lie.  To  change  one's  family,  therefore,  is  to  change  one's  per- 
sonality ;  it  means  the  destruction  of  the  old  personality  and  the 
birth  of  a  new  one. 

The  word  'family,'  however,  in  the  legal  signification  of  the 
term,  means,  according  to  the  civil  law  of  Rome,  something  very 
different  from  what  we  are  accustomed  to  associate  with  the  term. 
By  family  we  mean  the  aggregate  of  all  persons  who  are  connected 
by  ties  of  blood-relationship,  the  aggregate  of  all  members  of  one 
and  the  same  stock.  But  a  Roman  family,  within  the  meaning  of 
the  jus  civile,  means  the  aggregate  of  all  those  who  belong  to  one 
and  the  same  household,  who  are  subject  to  one  and  the  same 
'domestic  power'  (patria  potestas),  or,  at  any  rate,  would  be  thus 
subject,  if  the  common  ancestor  were  still  living.  This  is  what  is 
meant  by  the  term  'agnatio.'  And  the  civil  law  recognizes  no 
other  kind  of  relationship  but  agnatio ;  it  knows  nothing  of  cogna- 
tio  or  blood-relationship.  Thus  the  family  of  the  Roman  civil  law 
means  the  agnatic  family.  A  peculiar  characteristic  of  this  agnatic 
family  is  that  it  can  be  changed.  Blood-relationship  cannot  be 
destroyed,  and  a  cognatic  family,  or  family  in  the  modern  sense, 
does  not  admit  of  change.  But  a  person  can  separate  himself  from 
an  agnatic  family,  because  he  can  separate  himself  from  the  house- 
hold, i.e.  from  the  community  of  those  who  stand  under  the  same 
patria  potestas.  And  this  is  what  happens  to  a  daughter  who 
contracts  a  marriage  and  thereby  enters  the  marital  (i.e.  domestic) 
power  (manus)  of  her  husband  ('in  manum  conventio'),  or  of  the 


Chap.  XIX.]  CAPITIS   DEMINUTIO  355 

person  under  whose  patria  potestas  her  husband  stands.  Having 
passed  from  one  patria  potestas  to  another,  she  has  thereby  changed 
her  family  (her  agnatic  family,  namely) ;  she  has  changed  her  entire 
circle  of  relations  (agnatic  relations,  namely) ;  in  a  word,  she  has 
undergone  a  complete  change  of  personality.  The  same  thing 
happens  to  a  filiusfamilias,  when  his  father  sells  him  into  bondage 
(mancipium) ,  or  gives  him  in  adoption  (datio  in  adoptionem) ; 
and  again  to  a  person  sui  juris,  when  he  suffers  himself  to  be 
adopted  by  another  (arrogatio)  ;  or  lastly,  to  a  filiusfamilias,  when 
his  father  emancipates  him  from  the  paternal  power  (emancipatio). 
And  it  is  to  be  noted  that  in  spite  of  the  fact  that  the  emancipatus 
actually  improves  his  outward  position  by  becoming  a  pater- 
familias instead  of  a  filiusfamilias,  he  nevertheless  undergoes 
capitis  deminutio,  because  the  rupture  of  his  agnatic  ties  involves 
the  destruction  of  his  previous  legal  personality  and  the  creation 
of  a  new  one. 

Capitis  deminutio  minima,  then,  means  the  severance  from  one's 
agnatic  relationship,  and  it  occurs  in  five  cases,  viz.  in  the  case  of 
'  mancipio  dare,'  of  '  in  manum  coiiventio,'  of  '  datio  in  adoptionem,' 
of  'arrogatio,'  and  of  'emancipatio.' 

There  were  two  further  incidents  of  capitis  deminutio  minima 
which  fiowed  as  consequences  from  the  destructive  eft'ect  which 
capitis  deminutio  minima  had  in  common  with  the  other  forms  of 
capitis  deminutio.  Firstly,  it  was  a  rule  of  civil  law  that  capitis 
deminutio  minima  extinguished  the  contractual  debts  of  the  capite 
minutus.  The  praetor,  however,  subsequently  restored  to  the 
creditors  their  rights  of  action  by  means  of  in  integrum  restitutio. 
Secondly,  it  extinguished  all  personal  servitudes  to  which  the 
capite  minutus  had  been  entitled,  i.e.  all  such  jura  in  re  aliena  as 
had  belonged  to  him  for  life.  This  latter  rule  was  only  abolished 
by  Justinian.  According  to  the  law  as  laid  down  in  the  Corpus 
juris  personal  servitudes  are  only  extinguished  by  capitis  deminutio 
maxima  and  media. 


Chapter  XX 
EXISTIMATIONIS  MINUTIQi 

The  term  'honour'  refers,  in  the  first  instance,  only  to  social 
relations.  To  be  'honoured'  is  to  be  allowed  one's  full  worth  in 
society.  Society  treats  those  as  entitled  to  honour  who  act  in 
adherence  to  its  views.  The  award  or  denial  of  honour,  in  other 
words,  of  social  worth,  is  the  sanction  by  means  of  which  society 
enforces  on  individuals  not  merely  the  commands  of  law  and 
morality,  but  more  specifically  the  decrees  of  mere  usage  which 
may  conceivably  run  counter  to  law  and  morality.  The  particular 
kind  of  conduct  which  society  requires  from  the  individual  assumes 
different  forms  in  reference  to  the  dift'erent  sections  into  which 
society  is  divided,  and  it  is  in  this  sense  that  we  speak  of  the  honour 
of  a  particular  class,  of  military  honour,  professional  honour,  and 
so  on. 

The  effect  which  social  relations  and  social  views  produce  upon 
the  law,  finds  expression  in  the  legal  rules  concerning  'existimatio' 
or  '  civic  honour. '  The  law  yields,  to  some  extent,  to  the  judgment 
pronounced  by  society  and,  in  certain  circumstances,  imposes  legal 
disabilities  on  persons  whom  society  has  declared  to  fall  short  of  the 
standard  it  requires.  Civic  honour  (in  the  legal  sense)  means  full 
qualification  in  the  eye  of  the  law.  Loss  of  honour  (in  the  legal 
sense)  means  partial  disqualification  in  the  eye  of  the  law. 

The  civic  honour  of  a  civis  Romanus  may  be  destroyed  (con- 
sumtio  existimationis),  viz.  by  capitis  deminutio  maxima  or  media  ; 
or  it  may  be  merely  impaired  (minutio  existimationis).  And  it  is  in 
this  last  and  narrower  sense  that  the  expression  'loss  of  civic 
honour'  is  technically  applied.  Minutio  existimationis  may  be  de- 
fined as  the  impairment  of  a  man's  civic  honour  which,  without 
producing  capitis  deminutio  (in  other  words,  without  destroying  his 
previous  personality),  merely  operates  to  diminish  his  personal 
qualifications  in  the  eye  of  the  law. 

1  [By  Rudolph  Sohm.  Reprinted  by  permission  from  "The  Institutes 
of  Roman  Law  "  {Ledlie's  trans.),  Oxford  University  Press,  1892.] 

356 


Chap.  XX.]  EXISTIMATIONIS   MIXUTIO  357 

In  the  Roman  civil  law,  existimationis  minutio  only  occurs  :  (1) 
in  the  cases  determined  by  popular  enactments  ^ ;  (2)  in  conse- 
quence of  a  reprimand  from  the  censor.  But  here  again  the  jus 
honorarium  outstripped  the  civil  law.  Towards  the  close  of  the 
republic  the  censor  ceased  to  excercise  his  old  functions  and  the 
vacancy  thus  created  was  supplied  by  the  praetor.  For  the 
praetorian  edict  was  concerned  with  persons  whose  civic  dignity 
was  impaired  in  so  far  as  their  disabilities  in  regard  to  judicial 
proceedings  came  into  question.  Thus  the  praetor  in  his  edict 
enumerated  those  to  whom,  as  persons  of  tarnished  reputation,  he 
would  refuse  the  full  jus  postulandi,  i.e.  to  whom  he  would  deny 
the  right  to  make  motions  in  court  (postulare)  otherwise  than  on 
behalf  of  themselves  or  certain  close  relations.  In  another  part 
of  the  edict  he  specified  those  to  whom,  as  persons  of  tarnished 
reputation,  he  declined  to  grant  the  right  of  being  represented  by 
an  agent  in  an  action  before  him.  But  in  thus  denying  to  certain 
parties  full  legal  capacity  in  judicial  proceedings  (including, 
inter  alia,  the  unrestricted  jus  postulandi)  the  praetor  did  not 
directly  pronounce  them  'infames.'  He  had  neither  occasion  nor 
power  formally  to  curtail  the  civic  honour  which  a  person  enjoyed. 
But,  says  Gajus,  'those  whom  the  praetor  places  under  such  dis- 
abilities ice  call  infamous.^  It  was,  then,  in  those  lists  contained  in 
the  praetorian  edict  that  the  views  which  society  took  of  the  cases 
of  existimationis  minutio  found  legal  expression  and  were,  so  to 
speak,  codified ;  imperfectly,  it  is  true,  but  nevertheless  in  such  a 
way  as  to  be  decisive  of  the  future  attitude  of  the  law  towards 
civic  honour.  And  it  was  from  these  sections  of  the  praetorian 
edict  that  Justinian's  compilers  took  their  catalogue  of  cases  of 
existimationis  minutio. 

There  were,  more  particularly,  two  groups  of  cases  which  were 
contrasted  with  one  another,  the  cases  of  'infamia  immediata'  and 
of  'infamia  mediata.'  Infamy  was  said  to  be  'immediate,'  if  it 
attached  to  a  person  at  once,  ipso  jure,  on  the  commission  of  some 
act  which  deserved  to  be  visited  with  social  disgrace.  Thus  it 
attached  to  persons  engaged  in  a  disreputable  trade,  to  soldiers 
ignominiously  discharged  from  military  service,  to  persons  in  the 
relation  of  a  double  marriage  or  double  betrothal.  On  the  other 
hand,  infamy  was  said  to  be  'mediate,'  if  it  did  not  attach  directly, 
but  only  after  a  court  of  law  had  passed  judgment  on  the  delinciuent 
on  the  ground  of  some  act  which  deserved  to  be  visited  with  social 

1  Thus  e.g.  the  Twelve  Tables  (viii.  22)  declared  :  qui  se  sierit  testarier 
libripensve  fuerit,  ni  testimonium  fatiatur,  improbus  intestabilisque  esto. 


358  PERSONS  [Part  II. 

disgrace.  Such  was  the  effect  above  all  things  of  every  criminal 
sentence  touching  life,  limb  or  liberty.  A  similar  result  however 
followed  condemnation  in  certain  civil  cases,  more  especially  if 
judgment  were  given  against  a  person  in  a  civil  action  on  account  of 
a  dishonourable  breach  of  duty  (e.g.  as  guardian,  partner,  deposi- 
tary, agent).  Those  civil  actions  in  which  condemnation  entails 
infamy  are  called  'actiones  famosae.' 

No  codification  of  the  law  of  honour  can,  in  the  nature  of  things, 
be  complete.  It  was  necessary,  therefore,  to  allow  the  Roman 
judges  a  discretionary  power  to  take  account  of  such  cases  of  infamy 
as  had  not  been  specified  in  any  statute  or  the  praetorian  edict. 
Looked  at  from  this  point  of  view,  there  were  two  kinds  of  existima- 
tionis  minutio,  'infamia'  and  'turpitudo.'  In  the  case  of  'infamy' 
the  conditions  under  which  it  should  attach  were  fixed  by  the  law, 
viz.  by  statutes  and  the  praetorian  edict.  In  the  case  of  so-called 
'  turpitude,'  the  conditions  under  which  it  should  attach  were  fixed, 
not  by  the  law,  but  by  the  free  discretion  of  the  judge  acting,  in  each 
individual  case,  on  the  verdict  of  public  opinion,  in  other  words,  on 
the  verdict  of  society. 

Both  these  forms  of  minutio  existimationis  (viz.  infamia  and 
turpitude)  produce  this  result  that  the  judge,  acting  on  his  own 
discretion,  may  take  them  into  account,  wherever  the  character  of 
the  person  affected  is  concerned.  He  may  hesitate,  for  example, 
before  admitting  such  a  person  as  a  witness  or  allowing  him  to  act 
as  a  guardian.  Or  again,  if  an  infamis  or  turpis  is  instituted  in  a 
will,  the  judge  may  admit  the  brothers  and  sisters  of  the  deceased  to 
the  querela  inofficiosi  testamenti.  The  following  effects,  moreover, 
are  peculiar  to  infamy :  it  extinguishes  the  jus  suffragii  and  the 
jus  honorum;  it  restricts  the  jus  connubii  (by  disqualifying  the 
infamis  from  marrying  any  free-born  person) ;  and  it  also  restricts 
the  right  to  make  motions  in  court  on  behalf  of  others.  But  these 
special  disqualifications  incident  to  infamy  have  ceased  to  exist  in 
Justinian's  time.  As  far  as  a  man's  personality,  as  such,  is  con- 
cerned, the  only  effect,  under  Justinian's  law,  both  of  'infamy'  and 
'turpitude'  is  that  the  persons  affected  are  liable  to  be  subjected  to 
certain  disabilities  by  the  judge  in  the  exercise  of  his  judicial  dis- 
cretion. 


I 


PART   III 

THINGS 

Chapter  XXI 

THE    LAW   OF   PROPERTY 

Section  1.     Religious  Basis  of  Property 
By  Fustel  de  Coulanges 

Section  2.     Development  of  the  Idea  of  Property 
By  L.  T.  Hobhouse 

Section  3.     Early  History  of  Property  and  the  Village  Community 
By  Henry  S.  Maine 

Section  4.    The  Village  Community  as  a  Primitive  Institution 
By  George  Laurence  Gomme 

ClL\PTER    XXII 

ORIGIN   OF   COMMERCIAL    INSTITUTIONS 
By  L.  Goldschmidt 

Chapter  XXIII 

PRIMITIVE    COMMERCIAL    LAW 
By  Carl  Koehne 

Chapter  XXIV 

BARTER  AND  TRANSFER 

Section  1.     Barter 
By  Josef  Koiiler 

Section  2.    Primitive  Transfer  of  Goods 
By  Felix  Somlo 


Chapter  XXV 

PLEDGE 

Section  1.     Forms  of  Pledge  Rights 
By  Josef  Kohler 

Section  2.     The  Pledge  Idea 
By  John  H.  Wigmore 

Chapter  XXVI 

SURETYSHIP 
By  Josef  Kohler 

Chapter  XXVII 

EVOLUTION  OF  THE  LAW  OF  CONTRACT 

Section  1.     The  Fides  Commandment 
By  B.  W.  Leist 

Section  2.    Early  Law  of  Contract 
By  Henry  S.  Maine 

Section  3.    Sponsio  and  Primitive  Contract 
By  Pol  Collinet 

Chapter  XXVIII 

SALES   AND    LOANS   AT   ROME 
By  Rudolph  Sohm 

Chapter  XXIX 

INTEREST 
By  Josef  Kohleb 

Chapter  XXX 

SUCCESSION 

Section  1.    Survey  of  the  Law  of  Succession 
By  Josef  Kohler 

Section  2.    Religious  Basis  of  Inheritance 
By  Fustel  de  Coulanges 

Section  3.     Early  History  of  Testamentary  Succession 
By  Henry  S.  Maine 


Chapter  XXI 

THE   LAW  OF   PROPERTY 

Section  1 

RELIGIOUS    BASIS    OF    PROPERTY  i 

Here  is  an  institution  of  the  ancients  of  which  we  must  not  form 
an  idea  from  anj-thing  that  we  see  around  us.  The  ancients 
founded  the  right  of  property  on  principles  different  from  those  of 
the  present  generation  ;  as  a  result,  the  laws  by  which  they  guar- 
anteed it  are  sensibly  different  from  ours. 

We  know  that  there  are  races  who  have  never  succeeded  in  es- 
tablishing among  themselves  the  right  of  private  property,  while 
others  have  reached  this  stage  only  after  long  and  painful  experi- 
ence. It  is  not,  indeed,  an  easy  problem,  in  the  origin  of  society, 
to  decide  whether  the  individual  may  appropriate  the  soil,  and 
establish  such  a  bond  between  his  being  and  a  portion  of  the  earth, 
that  he  can  say.  This  land  is  mine,  this  is  the  same  as  a  part  of  me. 
The  Tartars  have  an  idea  of  the  right  of  property  in  a  case  of  flocks 
or  herds,  but  they  cannot  understand  it  when  it  is  a  question  of 
land.  Among  the  ancient  Germans  the  earth  belonged  to  no  one  ; 
every  year  the  tribe  assigned  to  each  one  of  its  members  a  lot  to 
cultivate,  and  the  lot  was  changed  the  following  year.  The  Ger- 
man was  proprietor  of  the  harvest,  but  not  of  the  land.  The  case 
is  still  the  same  among  a  part  of  the  Semitic  race,  and  among  some 
of  the  Slavic  nations. 

On  the  other  hand,  the  nations  of  Greece  and  Italy  from  the  ear- 
liest antiquity,  ali\'ays  held  to  the  idea  of  private  property.  We 
do  not  find  an  age  when  the  soil  was  common  among  them ;  ^  nor 
do  we  find  anything  that  resembles  the  annual  allotment  of  land 

■  [By  FusTEL  DE  CouLANGES,  "  The  Ancient  City " ;  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

2  Some  historians  have  expressed  the  opinion  that  at  Rome  property 
was  at  first  public,  and  did  not  become  private  till  Numa's  reign.  This 
error  comes  from  a  false  interpretation  of  three  passages  of  Plutarch 
("Numa."  16),  Cicero  ("Republic,"  II.  14),  and  Dioiii/sius  of  Haliearnas- 
sus  (II.  74).     These  three  authors  say,  it  is  true,  that  Xuma  distributed 

361 


362  THINGS  [Part  III. 

which  was  in  vogue  among  the  Germans.  And  here  we  note  a  re- 
markable fact.  While  the  races  that  do  not  accord  to  the  indi- 
vidual a  property  in  the  soil,  allow  him  at  least  a  right  to  the  fruits 
of  his  labor,  —  that  is  to  say,  to  his  harvest,  —  precisely  the  con- 
trary custom  prevailed  among  the  Greeks.  In  many  cities  the 
citizens  were  required  to  store  their  crops  in  common,  or  at  least  the 
greater  part,  and  to  consume  them  in  common.  The  individual, 
therefore,  was  not  the  master  of  the  corn  which  he  had  gathered ; 
but,  at  the  same  time,  by  a  singular  contradiction,  he  had  an  ab- 
solute property  in  the  soil.  To  him  the  land  was  more  than  the 
harvest.  It  appears  that  among  the  Greeks  the  conception  of 
private  property  was  developed  exactly  contrary  to  what  appears 
to  be  the  natural  order.  It  was  not  applied  to  the  harvest  first, 
and  to  the  soil  afterwards,  but  followed  the  inverse  order. 

There  are  three  things  which,  from  the  most  ancient  times,  we 
find  founded  and  solidly  established  in  these  Greek  and  Italian 
societies :  the  domestic  religion ;  the  family ;  and  the  right  of 
property  —  three  things  which  had  in  the  beginning  a  manifest 
relation,  and  which  appear  to  have  been  inseparable.  The  idea  of 
private  property  existed  in  the  religion  itself.  Every  family  had 
its  hearth  and  its  ancestors.  These  gods  could  be  adored  only  by 
this  family,  and  protected  it  alone.     They  were  its  property. 

Now,  between  these  gods  and  the  soil,  men  of  the  early  ages  saw 
a  mysterious  relation.  Let  us  first  take  the  hearth.  This  altar 
is  the  symbol  of  a  sedentary  life ;  its  name  indicates  this.^  It 
must  be  placed  upon  the  ground ;  once  established,  it  cannot  be 
moved.  The  god  of  the  family  wishes  to  have  a  fixed  abode ; 
materially,  it  is  difficult  to  transport  the  stone  on  which  he  shines ; 
religiously,  this  is  more  difficult  still,  and  is  permitted  to  a  man 
only  when  hard  necessity  presses  him,  when  an  enemy  is  pursuing 
him,  or  when  the  soil  cannot  support  him.  When  they  establish 
the  hearth,  it  is  with  the  thought  and  hope  that  it  will  always 
remain  in  the  same  spot.  The  god  is  installed  there  not  for  a  day, 
not  for  the  life  of  one  man  merely,  but  for  as  long  a  time  as  this 
family  shall  endure,  and  there  remains  any  one  to  support  its  fire 
by  sacrifices.  Thus  the  sacr6d  fire  takes  possession  of  the  soil, 
and  makes  it  its  own.     It  is  the  god's  property. 

lands  to  the  citizens,  but  they  indicate  very  clearly  that  these  lands  were 
conquests  of  his  predecessor,  'I'agri  quos  bello  Romulus  ceperat."  As 
-to  the  Roman  soil  itself  —  "ager  Romanus"  — it  was  private  property 
from  the  origin  of  the  city. 

1  "Earla,  laT-n/xi,  stare.     See  Plutarch,  "De  primofrigido,"  21 ;  Macrob.,  I. 
23;  Quid,  "Fast.,"  VI.  299. 


Chap.  XXI,  §  1.]       THE  LAW  OF  PROPERTY  363 

And  the  family,  which  through  duty  and  religion  remains  grouped 
around  its  altar,  is  as  much  fixed  to  the  soil  as  the  altar  itself.  The 
idea  of  domicile  follows  naturally.  The  family  is  attached  to  the 
altar,  the  altar  is  attached  to  the  soil ;  an  intimate  relation,  there- 
fore, is  established  between  the  soil  and  the  family.  There  must 
be  his  permanent  home,  which  he  will  not  dream  of  quitting,  unless 
an  unforeseen  necessity  constrains  him  to  it.  Like  the  hearth,  it 
will  alwaj's  occupy  this  spot.  This  spot  belongs  to  it,  is  its  prop- 
erty, the  property  not  simply  of  a  man,  but  of  a  family,  whose 
different  members  must,  one  after  another,  be  born  and  die  here. 

Let  us  follow  the  idea  of  the  ancients.  Two  sacred  fires  repre- 
sent two  distinct  divinities,  who  are  never  united  or  confounded ; 
this  is  so  true,  that  even  inter-marriage  between  two  families  does 
not  establish  an  alliance  between  their  gods.  The  sacred  fire  must 
be  isolated  —  that  is  to  say,  completely  separated  from  all  that  is 
not  of  itself ;  the  stranger  must  not  approach  it  at  the  moment 
when  the  ceremonies  of  the  worship  are  performed,  or  even  be  in 
sight  of  it.  It  is  for  this  reason  that  these  gods  are  called  the 
concealed  gods,  Ati^X^ot,  or  the  interior  gods,  Penates.  In  order  that 
this  religious  rule  may  be  well  observed,  there  must  be  an  enclosure 
around  this  hearth  at  a  certain  distance.  It  did  not  matter  whether 
this  enclosure  was  a  hedge,  a  wall  of  wood,  or  one  of  stone.  What- 
ever it  was,  it  marked  the  limit  which  separated  the  domain  of  one 
sacred  fire  from  that  of  another.  This  enclosure  was  deemed  sa- 
cred.^ It  was  an  impious  act  to  pass  it.  The  god  watched  over  it, 
and  kept  it  under  his  care.  They,  therefore,  applied  to  this  god 
the  epithet  of  e/3«;eto9.2  This  enclosure,  traced  and  protected  by  re- 
ligion, was  the  most  certain  emblem,  the  most  undoubted  mark  of 
the  right  of  property. 

Let  us  return  to  the  primitive  ages  of  the  Aryan  race.  The 
sacred  enclosure,  which  the  Greeks  call  e/J/co?,  and  the  Latins  here- 
in m,  was  the  somewhat  spacious  enclosure  in  which  the  family  had 
its  house,  its  flocks,  and  the  small  field  that  it  cultivated.  In  the 
midst  rose  the  protecting  fire-god.     Let  us  descend  to  the  succeed- 

^"EpKos  Upbv.     Sophocles,  '''Trachin.,"  606. 

2  At  an  epoch  when  this  ancient  worship  was  almost  effaced  bj'  the 
younger  religion  of  Zeus,  and  when  they  associated  him  with  the  fire-god, 
the  new  god  assumed  the  title  of  ep/ce?ots.  It  is  not  less  true  that,  in  the 
beginning,  the  real  protector  of  the  enclosure  was  the  domestic  god. 
Dionysius  of  Halicarnassus  asserts  this  (I.  68),  when  he  says  that  the 
6€ol  €pK€?oi  are  the  same  as  the  Penates.  This  follows,  moreover,  from 
a  comparison  of  a  passage  of  Pau,snnias  (IV.  17)  with  a  passage  of 
Euripides  ("Troad.,"  17),  and  one  of  Virgil  (''-'En.,"  II.  514)  ;  the  three 
passages  relate  to  the  same  fact,  and  show  that  Zei>s  epKeloi  was  no  other 
than  the  domestic  fire. 


J 

364  THINGS  [Part  III. 

ing  ages.  The  tribes  have  reached  Greece  and  Italy,  and  have 
built  cities.  The  dwellings  are  brought  nearer  together  :  they  are 
not,  however,  contiguous.  The  sacred  enclosure  still  exists,  but  is 
of  smaller  proportions ;  oftenest  it  is  reduced  to  a  low  wall,  a  ditch, 
a  furrow,  or  to  a  mere  open  space,  a  few  feet  wide.  But  in  no  case 
could  two  houses  be  joined  to  each  other ;  a  party  wall  was  sup- 
posed to  be  an  impossible  thing.  The  same  wall  could  not  be  com- 
mon to  two  houses ;  for  then  the  sacred  enclosure  of  the  gods  would 
have  disappeared.  At  Rome  the  law  fixed  two  feet  and  a  half  as 
the  width  of  the  free  space,  which  was  always  to  separate  two 
houses,  and  this  space  was  consecrated  to  "the  god  of  the  en- 
closure." ^ 

A  result  of  these  old  religious  rules  was,  that  a  community  of 
property  was  never  established  among  the  ancients.  A  phalan- 
stery was  never  known  among  them.  Even  Pythagoras  did  not 
succeed  in  establishing  institutions  which  the  most  intimate  re- 
ligion of  men  resisted.  Neither  do  we  find,  at  any  epoch  in  the 
life  of  the  ancients,  anything  that  resembled  that  multitude  of 
villages  so  general  in  France  during  the  twelfth  century.  Every 
family,  having  its  gods  and  its  worship,  was  required  to  have  its 
particular  place  on  the  soil,  its  isolated  domicile,  its  property. 

According  to  the  Greeks,  the  sacred  fire  taught  men  to  build 
houses ;  ^  and,  indeed,  men  who  were  fixed  by  their  religion  to  one 
spot,  which  they  believed  it  their  duty  not  to  quit,  would  soon 
begin  to  think  of  raising  in  that  place  some  solid  structure.  The 
tent  covers  the  Arab,  the  wagon  the  Tartar ;  but  a  family  that  has 
a  domestic  hearth  has  need  of  a  permanent  dwelling.  The  stone 
house  soon  succeeds  the  mud  cabin  or  the  wooden  hut.  The  family 
did  not  build  for  the  life  of  a  single  man,  but  for  generations  that 
were  to  succeed  each  other  in  the  same  dwelling. 

The  house  was  always  placed  in  the  sacred  enclosure.  Among 
the  Greeks,  the  square  which  composed  the  enclosure  was  divided 
into  two  parts ;  the  first  part  was  the  court ;  the  house  occupied 
the  second.  The  hearth,  placed  near  the  middle  of  the  whole 
enclosure,  was  thus  at  the  bottom  of  the  court,  and  near  the  en- 
trance of  the  house.  At  Rome  the  disposition  was  different,  but 
the  principle  was  the  same.  The  hearth  remained  in  the  middle 
of  the  enclosure,  but  the  buildings  rose  round  it  on  four  sides,  so  as 
to  enclose  it  within  a  little  court. 

1  Festus,  V.  "Ambitus."  Varro,  "L.  L.,"  V.  22.  Servius,  ."ad  ^n.," 
II.  469. 

^  Diodorus,  V.  68. 


Chap.  XXI,  §  1.]  THE   LAW  OF   PROPERTY  3G5 

We  can  easily  understand  the  idea  that  inspired  this  system  of 
construction.  The  walls  are  raised  around  the  hearth  to  isolate 
and  defend  it,  and  we  may  say,  as  the  Greeks  said,  that  religion 
taught  men  to  build  houses.  In  this  house  the  family  is  master 
and  proprietor;  its  domestic  divinity  assures  it  this  right.  The 
house  is  consecrated  by  the  perpetual  presence  of  gods;  it  is  a 
temple  which  preserves  them. 

"What  is  there  more  holy,"  says  Cicero,  "what  is  there  more 
carefully  fenced  round  with  e^'e^y  description  of  religious  respect, 
than  the  house  of  each  individual  citizen  ?  Here  is  his  altar,  here 
is  his  hearth,  here  are  his  household  gods;  here  all  his  sacred 
rights,  all  his  religious  ceremonies,  are  preserved."  ^  To  enter 
this  house  with  any  malevolent  intention  was  a  sacrilege.  The 
domicile  was  inviolable.  According  to  a  Roman  tradition,  the 
domestic  god  repulsed  the  robber,  and  kept  oflF  the  enemy.'^ 

Let  us  pass  to  another  object  of  worship  —  the  tomb  ;  and  we 
shall  see  that  the  same  ideas  were  attached  to  this.  The  tomb  held 
a  very  important  place  in  the  religion  of  the  ancients ;  for,  on  one 
hand,  worship  was  due  to  the  ancestors,  and  on  the  other,  the 
principal  ceremony  of  this  worship  —  the  funeral  repast  —  was  to 
be  performed  on  the  very  spot  where  the  ancestors  rested.^  The 
family,  therefore,  had  a  common  tomb,  where  its  members,  one 
after  another,  must  come  to  sleep.  For  this  tomb  the  rule  was  the 
same  as  for  the  hearth.  It  was  no  more  permitted  to  unite  two 
families  in  the  same  tomb  than  it  was  to  establish  two  domestic 
hearths  in  the  same  house.  To  bury  one  out  of  the  family  tomb, 
or  to  place  a  stranger  in  this  tomb,  was  equally  impious.^  The 
domestic  religion,  both  in  life  and  in  death,  separated  every  family 
from  all  others,  and  strictly  rejected  all  appearance  of  community. 
Just  as  the  houses  could  not  be  contiguous,  so  the  tombs  could  not 
touch  each  other ;  each  one  of  them,  like  the  house,  had  a  sort  of 
isolating  enclosure. 

How  manifest  is  the  character  of  private  property  in  all  this ! 
The  dead  are  gods,  who  belong  to  a  particular  family,  which  alone 
has  a  right  to  invoke  them.     These  gods  have  taken  possession  of 

1  Cicero,  "Pro  Domo,"  41.  2  Ovid,  "Fast.,"  V.  141. 

^  Such,  at  least,  was  the  ancient  rule,  since  they  believed  that  the 
funeral  repast  served  as  food  for  the  dead.     Eurip.,"Troa,d.,''  381. 

*  Cicero,  "De  Legib.,"  II.  22;  II.  26.  Gains,  "Instit.,"  II.  6.  "Di- 
gest," XLVII.  tit.  12.  We  must  note  that  the  slave  and  the  client,  as 
we  shall  see  farther  on,  were  a  part  of  the  family,  and  were  buried  in  the 
common  tomb.  The  rule  which  prescribed  that  every  man  should  be 
buried  in  the  tomb  of  his  family,  admitted  of  an  exception  in  the  case  where 
the  city  itself  granted  a  public  funeral. 


366  THINGS  [Part  III. 

the  soil ;  they  hve  under  this  httle  mound,  and  no  one,  except  one 
of  the  family,  can  think  of  meddling  with  them.  Furthermore, 
no  one  has  the  right  to  dispossess  them  of  the  soil  which  they  oc- 
cupy; a  tomb  among  the  ancients  could  never  be  destroyed  or 
displaced  ;  ^  this  was  forbidden  by  the  severest  laws.  Here,  there- 
fore, was  a  portion  of  the  soil  which,  in  the  name  of  religion,  became 
an  object  of  perpetual  property  for  each  family.  The  family  ap- 
propriated to  itself  this  soil  by  placing  its  dead  here ;  it  was  es- 
tablished here  for  all  time.  The  living  scion  of  this  family  could 
rightly  say.  This  land  is  mine.  It  was  so  completely  his,  that  it 
was  inseparable  from  him,  and  he  had  not  the  right  to  dispose  of 
it.  The  soil  where  the  dead  rested  was  inalienable  and  impre- 
scriptible. The  Roman  law  required  that,  if  a  family  sold  the 
field  w^here  the  tomb  was  situated,  it  should  still  retain  the  owner- 
ship of  this  tomb,  and  should  always  preserve  the  right  to  cross  the 
field,  in  order  to  perform  the  ceremonies  of  its  w^orship.^ 

The  ancient  usage  was  to  inter  the  dead,  not  in  cemeteries  or  by 
the  road-side,  but  in  the  field  belonging  to  the  family.  This  cus- 
tom of  ancient  times  is  attested  by  a  law  of  Solon,  and  by  several 
passages  in  Plutarch.  We  learn  from  an  oration  of  Demosthenes, 
that  even  in  his  time,  each  family  buried  its  dead  in  its  own  field, 
and  that  when  a  domain  was  bought  in  Attica,  the  burial-place 
of  the  old  proprietors  was  found  there.^  As  for  Italy,  this  same  cus- 
tom is  proved  to  have  existed  by  the  laws  of  the  Twelve  Tables,  by 
passages  from  two  jurisconsults,  and  by  this  sentence  of  Siculus 
Flaccus :  "  Anciently  there  were  two  ways  of  placing  the  tomb ; 
some  placed  it  on  one  side  of  the  field,  others  towards  the 
middle."  ' 

From  this  custom  we  can  see  that  the  idea  of  property  was  easily 
extended  from  the  small  mound  to  the  field  that  surrounded  this 
mound.  In  the  works  of  the  elder  Cato  there  is  a  formula  accord- 
ing to  which  the  Italian  laborer  prayed  the  manes  to  watch  over 
his  field,  to  take  good  care  against  the  thief,  and  to  bless  him  with 
a  good  harvest.  Thus  these  souls  of  the  dead  extended  tutelary 
action,  and  with  it  their  right  of  property,  even  to  the  boundaries 

1  Lycurgus,  '•'against  Leoerates,"  25.     At  Rome,  before  a  burial-place 
could  be  changed,  the  permission  of  the  pontiffs  was  required.     Pliny, 
"Letters,"  X.  73. 
•      '^  Cicero,  "  De  Legib.,"  II.  24.     "Digest,"  XVIII.  tit.  1.  6. 

8  "Laws  of  Solon,"  cited  by  Gains  in  "Digest,"  X.  tit.  1.  13.  De- 
mosthenes, "against  Callieles."     Plutarch,   "Aristides,"   1.         _ 

*  Siculus  Flaccus,  edit.  Goez,  p.  4.  See  "Fragm.  terminalia,"  edit. 
Goez,  p.  147.  Pomponius,  in  "Digest,"  XLVII.  tit.  12.  5.  Paul,  in 
"Digest,"  VIII.  1.  14. 


Chap.  XXI,  §  1.]       THE  LAW  OF  PROPERTY  367 

of  the  domain.  Through  them  the  famih'  was  sole  master  in  this 
field.  The  tomb  had  estabhshed  an  indissoluble  union  of  the  fam- 
ily with  the  land  —  that  of  ownership. 

In  the  greater  number  of  primitive  societies  the  right  of  property 
was  established  by  religion.  In  the  Bible,  the  Lord  said  to  Abra- 
ham, "  I  am  the  Lord,  that  brought  thee  out  of  Ur  of  the  Chaldees, 
to  give  thee  this  land,  to  inherit  it ; "  and  to  ]Moses,  "  Go  up  hence, 
.  .  .  into  the  land  which  I  sware  unto  Abraham,  to  Isaac,  and  to 
Jacob,  saying,  Unto  thee  will  I  give  it." 

Thus  God,  the  primitive  proprietor,  by  right  of  creation,  dele- 
gates to  man  his  ownership  over  a  part  of  the  soil.^  There  was 
something  analogous  among  the  ancient  Grteco-Italian  peoples. 
It  was  not  the  religion  of  Jupiter  that  founded  this  right,  it  is  true ; 
perhaps  because  this  religion  did  not  yet  exist.  The  gods  who 
conferred  upon  every  family  its  right  to  a  portion  of  the  soil,  were 
the  domestic  gods,  the  sacred  fire,  and  the  manes.  The  first  re- 
ligion that  exercised  its  empire  on  their  minds  was  also  the  one  that 
established  the  right  of  property  among  them. 

It  is  clearly  evident  that  private  property  was  an  institution  that 
the  domestic  religion  had  need  of.  This  religion  required  that  both 
dwellings  and  burying-places  should  be  separate  from  each  other ; 
living  in  common  was,  therefore,  impossible.  The  same  religion 
required  that  the  hearth  should  be  fixed  to  the  soil,  that  the  tomb 
should  neither  be  destroyed  nor  displaced.  Suppress  the  right  of 
property,  and  the  sacred  fire  would  be  without  a  fixed  place,  the 
families  would  become  confounded,  and  the  dead  would  be  aban- 
doned and  without  worship.  By  the  stationary  hearth  and  the 
permanent  burial-place,  the  family  took  possession  of  the  soil ; 
the  earth  was  in  some  sort  imbued  and  penetrated  by  the  religion 
of  the  hearth  and  of  ancestors.  Thus  the  men  of  the  early  ages 
were  saved  the  trouble  of  resolving  too  difficult  a  problem.  With- 
out discussion,  without  labor,  without  a  shadow  of  hesitation, 
they  arrived,  at  a  single  step,  and  merely  by  virtue  of  their  belief, 
at  the  conception  of  the  right  of  property ;  this  right  from  which 
all  civilization  springs,  since  by  it  man  improves  the  soil,  and  be- 
comes improved  himself. 

Religion,  and  not  laws,  first  guaranteed  the  right  of  property. 
Every  domain  was  under  the  eyes  of  household  divinities,  who 

1  Same  traditions  among  the  Etruscans  :  ^'Quum  Jupiter  terram  Etru- 
rife  sibi  vindicavit,  eonstituit  jussitque  metiri  campos  signarique  agros." 
"Auctores  Rei  AgrariiE,"  in  the  fragment  entitled  '''Idem  Vegoiae  Ar- 
runti,"  edit.  Goez. 


368  THINGS  [Part  III. 

watched  over  it.'  Every  field  had  to  be  surrounded,  as  we  have 
seen  for  the  house,*  by  an  enclosure,  which  separated  it  completely 
from  the  domains  of  other  families.  This  enclosure  was  not  a 
wall  of  stone  ;  it  was  a  band  of  soil,  a  few  feet  wide,  which  remained 
uncultivated,  and  which  the  plough  could  never  touch.  This 
space  was  sacred ;  the  Roman  law  declared  it  indefeasible ;  -  it 
belonged  to  the  religion.  On  certain  appointed  days  of  each 
month  and  year,  the  father  of  the  family  went  round  his  field,  fol- 
lowing this  line ;  he  drove  victims  before  him,  sang  hymns,  and 
offered  sacrifices.^  By  this  ceremony  he  believed  he  had  awakened 
the  benevolence  of  his  gods  towards  his  field  and  his  house ;  above 
all,  he  had  marked  his  right  of  property  by  proceeding  round  his 
field  with  his  domestic  worship.  The  path  which  the  victims  and 
prayers  had  followed  was  the  inviolable  limit  of  the  domain. 

On  this  line,  at  certain  points,  the  men  placed  large  stones  or 
trunks  of  trees,  which  they  called  Termini.  We  can  form  a  good 
idea  as  to  what  these  bounds  were,  and  what  ideas  were  connected 
with  them,  by  the  manner  in  which  the  piety  of  men  established 
them.  "This,"  says  Siculus  Flaccus,  "was  the  manner  in  which 
our  ancestors  proceeded :  They  commenced  by  digging  a  small 
hole,  and  placing  the  Terminus  upright  near  it ;  next  they  crowned 
the  Terminus  with  garlands  of  grasses  and  flowers ;  then  they 
offered  a  sacrifice.  The  victim  being  immolated,  they  made  the 
blood  flow  into  the  hole ;  they  threw  in  live  coals  (kindled,  prob- 
ably, at  the  sacred  fire  of  the  hearth),  grain,  cakes,  fruits,  a  little 
wine,  and  some  honey.  When  all  this  was  consumed  in  the  hole, 
they  thrust  down  the  stone  or  piece  of  wood  upon  the  ashes  while 
they  were  still  warm."  ^  It  is  easy  to  see  that  the  object  of  the 
ceremony  was  to  make  of  this  Terminus  a  sort  of  sacred  represen- 
tation of  the  domestic  worship.  To  continue  this  character  for 
it,  they  renewed  the  sacred  act  every  year,  by  pouring  out  libations 
and  reciting  prayers.  The  Terminus,  once  placed  in  the  earth, 
became  in  some  sort  the  domestic  religion  implanted  in  the  soil, 
to  indicate  that  this  soil  was  forever  the  property  of  the  family. 
Later,  poetry  lending  its  aid,  the  Terminus  was  considered  as  a 
distinct  god. 

The  employment  of  Termini,  or  sacred  bounds  for  fields,  appears 

1  "Lares  agri  custodes,"  TibuUus,  I.  1,  23.  "Religio  Larum  posita  in 
fundi  villseque  eonspectu."     Cicero,  "I'De  Legib.,"  II.  11. 

2  Cicero,  "De  Legib.,"  I.  21. 

3  Cato,  "De  Re  Rust.,"  141.  '-'S^eript.  Rei  Agrar.,"  edit.  Goez,  p.  308. 
Dionysius  of  Haliearnassus,  II.  74.    Ovid,  "Fast.,"  II.  639.    Strabo,  V.  3. 

*  Siculus  Flaccus,  edit.  Goez,  p.  5. 


Chap.  XXI,  §  1.]  THE   LAW  OF   PROPERTY  369 

to  have  been  universal  among  the  Indo-European  race.  It  existed 
among  the  Hindus  at  a  \'ery  early  date,  and  the  sacred  ceremonies 
of  the  boundaries  had  among  them  a  great  analogy  with  those 
which  Siculus  Flaccus  has  described  for  Italy. ^  Before  the  foun- 
dation of  Rome,  we  find  the  Terminus  among  the  Sabines ;  ^  we 
also  find  it  among  the  Etruscans.  The  Hellenes,  too,  had  sacred 
landmarks,  which  they  called  opoi,  6eol  opioi.^ 

The  Terminus  once  established  according  to  the  required  rites, 
there  was  no  power  on  earth  that  could  displace  it.  It  was  to  re- 
main in  the  same  place  through  all  ages.  This  religious  principle 
was  expressed  at  Rome  by  a  legend :  Jupiter,  having  wished  to 
prepare  himself  a  site  on  the  Capitoline  hill  for  a  temple,  could 
not  displace  the  god  Terminus.  This  old  tradition  shows  how 
sacred  property  had  become ;  for  the  immovable  Terminus  signi- 
fied nothing  less  than  inviolable  property. 

In  fact,  the  Terminus  guarded  the  limit  of  the  field,  and  watched 
over  it.  A  neighbor  dared  not  approach  too  near  it :  "For  then," 
says  Ovid,  "the  god,  who  felt  himself  struck  by  the  ploughshare, 
or  mattock,  cried,  'Stop  :  this  is  my  field  ;  there  is  yours.'  "  ^  To 
encroach  upon  the  field  of  a  family  it  was  necessary  to  overturn 
or  displace  a  boundary  mark,  and  this  boundary  mark  was  a  god. 
The  sacrilege  was  horrible,  and  the  chastisement  severe.  Accord- 
ing to  the  old  Roman  law,  the  man  and  the  oxen  who  touched  a 
Terminus  were  devoted  ^  —  that  is  to  say,  both  man  and  oxen  were 
immolated  in  expiation.  The  Etruscan  law,  speaking  in  the  name 
of  religion,  says,  "He  who  shall  have  touched  or  displaced  a  bound 
shall  be  condemned  by  the  gods ;  his  house  shall  disappear ;  his 
race  shall  be  extinguished  ;  his  land  shall  no  longer  produce  fruits ; 
hail,  rust,  and  the  fires  of  the  dog-star  shall  destroy  his  harvests ; 
the  limbs  of  the  guilty  one  shall  become  covered  with  ulcers,  and 
shall  waste  away."  ®  We  do  not  possess  the  text  of  the  Athenian 
law  on  this  subject ;  there  remain  of  it  only  three  words,  which 
signify,  "Do  not  pass  the  boundaries,"  But  Plato  appears  to 
complete  the  thought  of  the  legislator  when  he  says,  "  Our  first 
law  ought  to  be  this :  Let  no  person  touch  the  bounds  which  sep- 
arate his  field  from  that  of  his  neighbor,  for  this  ought  to  remain 
immovable.  .  .  .     Let  no  one  attempt  to  disturb  the  small  stone 

'  "Lawsof  Manu,"  VIII.  245.  Vrihaspati,  cited  by  Sice,  ^' Hindu  Legis- 
lation," p.  1.59. 

2  Varro,  ^'L.  L.,"  V.  74. 

3  Pollux,  IX.  9.     Hesychius,  6pos.     Plato,  ^'Laws,"  p.  842. 

*  Ovid,  "Fast.,"  II.  677.  '"  Festus,  v.  ''Terminus." 

'  "Script.  Rei  Agrar.,"  ed.  Goez,  p.  258. 


370  THINGS  [Part  III. 

which  separates  friendship  from  enmity,  and  which  the  land-owners 
have  bound  themselves  by  an  oath  to  leave  in  its  place."  ^ 

From  all  these  beliefs,  from  all  these  usages,  from  all  these  laws, 
it  clearly  follows  that  the  domestic  religion  taught  man  to  appro- 
priate the  soil,  and  assured  him  his  right  to  it. 

There  is  no  difficulty  in  understanding  that  the  right  of  property, 
having  been  thus  conceived  and  established,  was  much  more  com- 
plete and  absolute  in  its  effects  than  it  can  be  in  our  modern  so- 
cieties, where  it  is  founded  upon  other  principles.  Property  was 
so  inherent  in  the  domestic  religion  that  a  family  could  not  renounce 
one  without  renouncing  the  other.  The  house  and  the  field  were 
—  so  to  speak  —  incorporated  in  it,  and  it  could  neither  lose  them 
nor  dispose  of  them.  Plato,  in  his  treatise  on  the  Laws,  did  not 
pretend  to  advance  a  new  idea  when  he  forbade  the  proprietor  to 
sell  his  field  ;  he  did  no  more  than  to  recall  an  old  law.  E\erything 
leads  us  to  believe  that  in  the  ancient  ages  property  was  inalienable.  - 
It  is  well  known  that  at  Sparta  the  citizen  was  formally  forbidden 
to  sell  his  lot  of  land.^  There  was  the  same  interdiction  in  the  laws 
of  Locri  and  of  Leucadia.^  Pheidon  of  Corinth,  a  legislator  of  the 
ninth  century  B.C.,  prescribed  that  the  num^ber  of  families  and  of 
estates  should  remain  unchangeable.*  Now,  this  prescription 
could  be  observed  onh'  when  it  was  forbidden  to  sell  an  estate,  or 
even  to  divide  it. 

The  law  of  Solon,  later  by  seven  or  eight  generations  than  that 
of  Pheidon  of  Corinth,  no  longer  forbade  a  man  to  sell  his  land,  but 
punished  the  vendor  by  a  severe  fine,  and  the  loss  of  the  rights  of 
citizenship.^  Finally,  Aristotle  mentions,  in  a  general  manner, 
that  in  many  cities  the  ancient  laws  forbade  the  sale  of  land.^ 

Such  laws  ought  not  to  surprise  us.  Found  property  on  the 
right  of  labor,  and  man  may  dispose  of  it.  Found  it  on  religion, 
and  he  can  no  longer  do  this ;  a  tie  stronger  than  the  will  of  man 
binds  the  land  to  him.  Besides,  this  field  where  the  tomb  is  situ- 
ated, where  the  divine  ancestors  live,  where  the  family  is  forever 
to  perform  its  worship,  is  not  simply  the  property  of  a  man,  but  of 
a  family.  It  is  not  the  individual  actually  living  who  has  estab- 
lished his  right  over  this  soil,  it  is  the  domestic  god.  The  indi- 
vidual has  it  in  trust  only  ;  it  belongs  to  those  who  are  dead,  and  to 
those  who  are  yet  to  be  born.     It  is  a  part  of  the  body  of  this 

1  Plato,  "Laws,"  VIII.  p.  842. 

^Plutarch,  "Lyeurg.,"  "Agis."     Aristotle,  ^'Polit.,"  II.  6,  10  (II.  7). 
3  Ibid.,  II.  4.  4  (II.  5).  *  Id.,  ibid.,  II.  3,  7. 

^  jEschines,  "against  Timarchus."     Diogenes  Laertius,  I.  55. 
^Aristotle,  '''Polit.,"  VII.  2. 


Chap.  XXI,  §  1.]  THE    LAW   OF   PROPERTY  371 

family,  and  cannot  be  separated  from  it.  To  detach  one  from 
tlie  other  is  to  alter  a  worship,  and  to  offend  a  religion.  Among  the 
Hindus,  property,  also  founded  upon  religion,  was  also  inalienable.^ 

We  know  nothing  of  Roman  law  previous  to  the  laws  of  the 
Twelve  Tables.  It  is  certain  that  at  that  time  the  sale  of  property 
was  permitted ;  but  there  are  reasons  for  thinking  that,  in  the 
earlier  days  of  Rome,  and  in  Italy  before  the  existence  of  Rome, 
land  was  inalienable,  as  in  Greece.  Though  there  remains  no  evi- 
dence of  this  old  law,  there  remain  to  us  at  least  the  modifications 
which  were  made  in  it  by  degrees.  The  law  of  the  Twelve  Tables, 
though  attaching  to  the  tomb  the  character  of  inalienability,  has 
freed  the  soil  from  it.  Afterwards  it  was  permitted  to  divide  prop- 
erty, if  there  were  several  brothers,  but  on  condition  that  a  new 
religious  ceremony  should  be  performed,  and  that  the  new  parti- 
tion should  be  made  by  a  priest ;  -  religion  only  could  divide  what 
had  before  been  proclaimed  indivisible.  Finally,  it  was  permitted 
to  sell  the  domain  ;  but  for  that  formalities  of  a  religious  character 
were  also  necessary.  This  sale  could  take  place  only  in  the  presence 
of  a  priest,  whom  they  called  libripens,  and  with  the  sacred  for- 
mality which  they  called  mancipation.  Something  analogous  is 
seen  in  Greece ;  the  sale  of  a  house  or  of  land  was  always  accom- 
panied with  a  sacrifice  to  the  gods.^  Every  transfer  of  property 
needed  to  be  authorized  by  religion.  If  a  man  could  not,  or  could 
only  with  difficulty,  dispose  of  land,  for  a  still  stronger  reason  he 
could  not  be  deprived  of  it  against  his  will. 

The  appropriation  of  land  for  public  utility  was  unknown  among 
the  ancients.  Confiscation  was  resorted  to  only  in  case  of  con- 
demnation to  exile  ^  —  that  is  to  say,  when  a  man,  deprived  of  his 
right  to  citizenship,  could  no  longer  exercise  any  right  over  the 
soil  of  the  city.  Nor  was  the  taking  of  property  for  debt  known 
in  the  ancient  laws  of  cities.'  The  laws  of  the  Twelve  Tables  as- 
suredly do  not  spare  the  debtor  ;  still  they  do  not  permit  his  prop- 
erty to  be  sold  for  the  benefit  of  the  creditor.  The  body  of  the 
debtor  is  held  for  the  debt,  not  his  land,  for  the  land  is  inseparable 
from  the  family.     It  is  easier  to  subject  a  man  to  servitude  than  to 

'  "Mitakehara,"  Orinnnc's  trans.,  p.  50.  This  rule  disappeared  by 
degrees  after  Brahrainism  became  dominant. 

2  This  priest  was  called  agrimensor.     See  "Scriptores  Rei  Agrariae." 

3  StohcEus,  42. 

*  This  rule  disappeared  in  the  democratic  age  of  the  cities. 

^A  law  of  the  Elaeans  forbade  the  mortgaging  of  land.  Aristotle, 
^'Polit.,"  VII.  2.  Mortgages  were  unknown  in  ancient  Roman  law. 
What  is  said  of  mortgages  in  the  Athenian  law  before  Solon  is  based  on 
a  doubtful  passage  of  Plutarch. 


372  THINGS  [Part  III. 

take  his  property  from  him.  The  debtor  is  placed  in  the  hands  of 
the  creditor;  his  land  follows  him,  in  some  sort,  into  slavery. 
The  master  who  uses  the  physical  strength  of  a  man  for  his  own 
profit,  enjoys  at  the  same  time  the  fruits  of  his  land,  but  does  not 
become  the  proprietor  of  it.  So  inviolable  above  all  else  is  the 
right  of  property.^ 

Section  2 
development  of  the  idea  of  property  2 

1.  Among  primitive  peoples  there  is  little  scope  for  the  institu- 
tion of  private  property.  Land,  as  we  shall  see  more  fully  later 
on,  is  held  in  common,  and  apart  from  land  and  its  produce,  such 
peoples  possess  little  which  can  be  appropriated,  except  their 
small  personal  belongings.  These,  it  would  seem,  belong  to  the 
individual  from  the  first.  Indeed,  tools  and  weapons  are  so  com- 
pletely identified  with  their  owner,  that  they  are  very  frequently 
buried  with  him,  and  that  on  one  of  two  grounds  —  either  that  he 
may  use  them  in  his  future  life,  or  because  as  belonging  to  a  dead 
man  they  are  regarded  as  dangerous  and  are  therefore  best  done 
away  with.  Now  the  recognition  of  individual  property  in' per- 
sonal belongings  and  of  communal  property  in  land  and  its  produce 
may  both  be  explained  as  resting  on  one  and  the  same  principle 
—  the  principle  of  occupation  and  use.  It  is  the  individual  who 
actually  carries  and  handles  the  spear  or  fishing-net,  the  family 
or  the  tribe  which  actually  occupies  and  hunts  over  the  land. 
Thus  we  may  provisionally  accept  the  view"  that  property  in  its 
early  stages  is  based  on  occupation  and  use,  and  cannot  be  dis- 
severed from  them.     But  with  the  destruction  of  the  dead  man's 

1  In  the  article  of  the  law  of  the  Twelve  Tables  which  relates  to  insol- 
vent debtors,  we  read,  "  Si  volet  suo  vivito  "  ;  then  the  debtor,  having  be- 
come almost  a  sls.ve,  still  retains  something  for  himself;  his  land,  if  he 
has  any,  is  not  taken  from  him.  The  arrangements  known  in  Roman  law 
nnder  the  names  oi  fiduciary  mancipation,  and  of  pignus,  were,  before  the 
introduction  of  the  Servian  action,  the  means  employed  to  insure  to  the 
creditor  the  payment  of  the  debt ;  these  prove  indirectly  that  the  seizure 
of  propertj'  for  debt  was  not  practised.  Later,  when  they  suppressed 
corporal  servitude,  it  was  necessary  that  there  should  V)e  some  claim  on 
the  property  of  a  debtor.  The  change  was  not  without  difficulty ;  but 
the  distinction  which  was  made  between  property  and  possession  offered 
a  resource.  The  creditor  obtained  of  the  praetor  the  right  to  sell,  not  the 
propertj',  dominium,  but  the  goods  of  the  debtor,  bona.  Then  only,  by 
a  disguised  seizure,  the  debtor  lost  the  enjoyment  of  his  property. 

-[By  L.  T.  HoBHousE.  Reprinted  from  "Morals  in  Evolution,"  by 
permission  of  Henry  Holt  and  Company,  New  York.  Abbreviated  and 
omitted  book-titles  with  the  detail  of  editions  are  supplied  .by  the  author's 
reference  list  on  p.  xiii  seq.,  Vol.  I  of  the  original  work.] 


I 


Chap.  XXI,  §  2.]  THE    LAW   OF   PROPERTY  373 

belongings  we  touch  on  another  conception,  which  we  must  allow 
for  at  very  low,  perhaps  at  the  lowest,  stages.  Among  many 
rude  peoples  the  statement  that  property  depends  upon  user  must 
be  qualified  by  the  exception  that  it  may  also  be  secured  by  taboo. 
This  is  probably  the  explanation  of  the  extreme  scrupulousness 
shown  by  some  savages  in  regard  to  the  belongings  of  others. 
Thus,  among  the  Kunama,  Dr.  Tylor  remarks  that  a  hedge  may 
be  mended  by  a  cotton  thread.^  That  would  certainly  not  do 
in  the  civilized  world.  But  then  the  civilized  man  does  not  fear 
that  death  will  follow  from  a  breach  of  the  fence  as  a  magic  result. 
In  Oceania,^  where  taboo  reaches  its  extreme  development,  it  is 
freely  used  for  protection  of  property,  real  and  personal.  In 
ancient  Babylon  boundary  stones  were  secured  by  an  impreca- 
tion,^ that  is  to  say,  a  curse  was  laid  upon  them  which  would  fall 
on  those  who  should  remove  them.  The  heap  of  stones  which 
Jacob  and  Laban  set  up  were  to  be  witnesses  between  them,  and 
it  is  possible  that  here  too  the  power  to  punish  the  transgressor 
was  conceived  as  lying  within  the  stone  itself ;  while  at  a  later 
stage,  in  accordance  with  the  regular  development  of  religion,  the 
curse  was  laid  upon  him  who  moves  the  stone  by  Jehovah.  When 
we  read  of  the  Western  Esquimaux,  whose  honesty  is  highly 
praised  by  travellers,  that  other  people's  goods  left  about  with  a 
stone  placed  over  them  are  quite  secure,  we  can  hardly  avoid 
wondering  whether  this  is  due  to  simple  honesty  of  character  or 
to  the  magic  qualities  of  the  stone. 

Thus  the  legal  conception  of  user  may  be  reinforced  by  the 
magical  idea  of  taboo  as  a  basis  of  property.  But  —  whether 
owing  to  the  irregular  development  of  the  latter  conception  or 
not  —  we  have  next  to  observe  that  the  regard  actually  paid  to 
rights  of  property  is  a  very  fluctuating  quantity  in  the  less  civilized 
world,  and  the  moral  attitude  to  the  whole  matter  differs  seriously 
from  that  of  more  developed  races.  We  cannot,  indeed,  speak  in 
general  terms.  Some  savage  peoples  get  a  very  good  character 
from  travellers  for  honesty,  while  others  are  severely  condemned. 
This  condemnation,  again,  sometimes  refers  merely  to  their  habit 
of  stealing  from  other  tribes  or  from  strangers,  and  this,  as  we  have 
seen,  hardly  counts.  Strangers  have  no  rights,  whether  of  life 
or  property,  except  in  so  far  as  protected  by  the  law  of  hospitality. 
Thus  among  the  Red  Indians  the  guest  was  safe  while  under  the 

1  Tylor,  "Contemp.  Re\iew,"  April  1873,  p.  704. 
^Ratzel,  "History  of  Mankind,"  vol.  i,  p.  285. 
'  Maspero,  p.  762. 


374  THINGS  [Part  III, 

roof  of  his  host,  but  might  be  freely  robbed  in  the  prairie.^  The 
real  question,  therefore,  is  how  far  the  rights  of  property  are 
recognized  within  the  tribe.  As  to  this  we  find  very  divergent 
statements,  and  sometimes  much  difference  between  nearly  allied 
peoples.  Thus  among  the  Nagas,^  in  some  tribes  theft  is  punish- 
able by  fines,  beating,  and  even  death,  but  in  two  of  the  tribes 
it  is  not  considered  disgraceful  at  all.  In  some  peoples  success- 
ful theft  is  held  as  by  no  means  dishonourable.     The  case  of 

Autolycus  has  been  referred  to Among   some  of  the 

Esquimaux  theft  when  discovered  is  merely  held  a  clever  trick ;  ^ 
among  the  Balantes  in  Africa  it  is  held  honourable,  while  among 
the  Kaffirs  the  children  of  chiefs  may  steal  within  their  own  tribe.^ 
Even  in  some  civilized  or  semi-civilized  communities,  as  at  one 
time  in  ancient  Egypt,  we  find  a  recognized  organization  of  theft 
under  constituted  authorities  who  duly  restore  the  property  to 
the  owner  on  payment  of  a  portion  of  its  value.  ^  Further,  the 
distinction  so  frequent  in  early  law  between  the  manifest  and  the 
non-manifest  thief  —  that  is  to  say,  between  the  thief  taken  in 
the  act  and  the  thief  who  has  got  clear  away  —  probably  points 
to  a  time  when  the  successful  thief  was  rather  admired  for  his 
skill  than  condemned  for  dishonesty,  and  possibly  acquired,  or 
might  at  any  rate  confer,  a  title  to  the  goods.^  This  same  dis- 
tinction illustrates  a  further  point.  The  tendency  of  early  law 
is,  as  will  be  understood  from  the  discussion  in  Chapter  VI,,  to 
treat  theft  like  other  delinquencies,  from  the  point  of  view  of 
vengeance  rather  than  of  justice.  The  owner,  surprising  the  thief 
in  the  act  of  carrying  off  his  goods,  will  naturally  attack,  and  will 
very  likely  kill  him.  If  so,  who,  on  primitive  principles,  can 
blame  him  ?  But  if  he  does  not  come  up  with  the  thief,  but  finds 
out  the  robbery  in  cold  blood,  then  he  ought  to  control  his  vindic- 
tive feelings,  and  be  thankful  if  custom  allows  him  to  get  restitu- 

1  Waitz,  vol.  iii.  pp.  129,  130. 

2  Godden,  "J.  A.  I.,"  26,  op.  cit.,  p.  174. 

3  Waitz,  vol.  iii.  p.  309. 

*  Post,  "Afrik.  Juris.,"  vol.  ii.  p.  83.  Similarly  there  was  a  class  of 
privileged  thieves  in  Ashanti. 

^  In  Abyssinia  thieves  are  organized  under  a  chief  who  pays  tribute. 
(Post,  loc.  cit.)  Waitz,  (vol.  ii.  p.  218).  mentions  that  in  some  parts  of 
Africa  the  thief  keeps  half  of  what  he  steals.  For  the  organization  of 
thieves  in  Egypt,  see  Diodorus,  i.  80,  1. 

^  See  Pollock  and  Maitlnnd,  vol.  ii.  p.  497.  Instances  of  the  "receiver  " 
being  vested  with  ownership  of  movables  occur  in  contemporary  Africa. 
{Post,  "Afrik.  Juris.,"  vol.  ii.  p.  162.)  On  the  Congo,  according  to  Waitz 
(loc.  cit.),  secret  theft  is  held  slavish,  but  open  robbery  lordlj^  and  he 
states  that  the  Kaffirs  generally  condemn  theft,  but  admire  it  when  cleverly 
executed.     (Op.  cit.,  401.) 


Chap.  XXI,  §  2.]  THE    LAW   OF   PROPERTY  375 

tion,  with  perhaps  something  more,  for  his  pains.  In  early  Eng- 
lish law,  the  thief  caught  red-handed  could  be  hanged  without 
opportunity  of  self-defence  before  an  impromptu  court.  But  an 
action  for  robbery,  even  in  the  twelfth  century,  involved  only  a 
double  restitution.^  In  the  "Book  of  the  Covenant,"  "if  the  thief 
be  found  breaking  in  and  be  smitten  that  he  die,  there  shall  be 
no  blood-guiltiness  for  him.  If  the  sun  be  risen  upon  him,  there 
shall  be  blood-guiltiness  for  him."  The  owner  should  not  let  the 
sun  rise  upon  his  wrath.  The  thief  must  merely  make  restitution. 
If  the  stolen  animal  is  alive  he  shall  pay  double,  if  he  has  killed 
or  sold  it  "  he  shall  pay  five  oxen  for  an  ox,  and  four  sheep  for  a 
sheep."  -  The  ^Nloors,  on  the  other  hand,  at  the  present  day  do 
not  punish  theft  by  night,  but  only  by  day,  and  then  only  when 
the  thief  is  caught  in  the  act.^  It  is  clear  that  in  such  distinctions 
as  these  the  law  takes  account,  not  of  the  right  and  the  wrong  of 
the  case,  as  we  should  conceive  it,  but  merely  of  the  degree  of 
resentment  natural  to  the  man  who  is  wronged  and  of  the  man- 
ner in  which  he  may  be  expected  to  appease  it.  Clearly,  wherever 
the  thief  is  allowed  to  keep  a  part  of  the  stolen  property,  or  has 
simply  to  make  restitution,  stealing  can  hardly  be  considered  a 
wicked  act  in  our  sense  of  the  term,  and  even  where  restitution  is 
double  or  manifold,  we  must  regard  it  as  rather  intended  to  satisfy 
the  injured  party  than  as  a  punishment  of  the  wrongdoer."* 

On  the  other  hand,  there  are  also  many  cases,  even  in  the  un- 
civilized world,  where  theft  is  severely  punished,  not  only  by 
fines,  which  are  a  form  of  manifold  restitution,  but  also  by  beat- 
ing, enslavement,  mutilation,  humiliating  exposure,  and  even 
death. ^  Indeed,  as  soon  as  public  punishments  arise,  it  is  generally 
punished  with  great  severity.  Thus  in  England  an  action  for 
robbery,  which  only  involved  double  restitution  in  the  time  of 
Glanvil,  who  died  in  1190,  was  punished  by  death  and  mutilation 
in  the  time  of  Bracton,  who  died  in  1268,^  and  a  little  while  later 
death  was  the  invariable  penalty,  even  in  the  end  for  the  theft 
of  a  shilling ;  while  smaller  thefts  —  petty  larceny  —  were  punished 
by  whipping,  pillory,  or  by  the  loss  of  an  ear,  and  on  repetition  by 
death. 

The  conclusion  to  which  facts  such  as  these  point,  and  which, 

'  Pollock  and  Maitland,  vol.  ii.  pp.  494  and  .579. 
^  Exodus  xxii.  1-^.  ^  Post,  "  Afrik.  .Juris.,"  vol.  ii.  p.  85.  ' 

^  Restitution  is  a  verj^  common  penaltj'  in  Africa.  {Post,  "Afrik. 
Juris.,"  vol.  ii.  p.  83.)       "  • 

^  Instances  of  all  these  in  Africa.      (Post,  I.e.) 
*  Pollock  and  Maitland,  ii.  p.  494. 


376  THINGS  [Part  III. 

remembering  how  scanty  the  evidence  is,  we  may  tentatively 
adopt,  is  that  the  conception  of  property,  even  in  relation  to 
personal  belongings,  is  somewhat  irregularly  developed  in  the  un- 
civilized world.  Wliere  the  rights  of  owners  are  very  strictly 
regarded  the  cause  is  in  many  instances  the  fear  of  magic,  though 
in  some  cases  (as  among  the  Iroquois  and  the  Dakotas)  ^  it  may 
have  a  more  decisively  moral  character.  But  in  a  very  large  num- 
ber of  cases,  if  not  in  the  majority,  we  have  reason  for  supposing 
that  the  right  of  property  is  not  held  morally  sacred  as  with  us, 
theft  not  being  punished  as  theft,  while  in  some  cases  stolen  goods 
are  not  even  recoverable.  On  the  other  hand,  with  the  rise  of  a 
settled  society,  while  private  property  in  land  is  developing,  and 
property  in  movables  is  increasing  through  the  growth  of  the  arts, 
the  punishment  of  the  thief  is  taken  out  of  the  category  of  ven- 
geance; he  is  dealt  with  as  a  moral  offender,  and  that  with  the 
extreme  of  severity.-  This  is  after  all  only  to  state  in  special 
relation  to  property  the  conclusions  which  we  reached  in  Chapter 
VI.  with  regard  to  rights  in  general.  My  right  to  my  property, 
like  my  other  rights,  is  in  the  earlier  stages  only  mine  in  the  sense 
that  I  shall  be  expected  to  avenge  its  infringement  by  certain 
recognized  methods.  That  I  have  a  moral  claim  to  it,  which  it  is 
wicked  to  infringe,  and  not  only  wicked  but  an  offence  punishable 
by  society,  is  a  higher  conception  which  is  only  perfected  by 
degrees. 

2.  ...  In  primitive  society,  as  has  been  mentioned,  private 
property  is  limited  to  the  insignificant  personal  possessions,  the 
arms  and  tools,  etc.,  of  the  savage  —  while  the  land,  the  great  and 
permanent  source  of  sustenance,  is  generally  common  to  the  family 
or  to  the  clan,  and  in  the  rudest  forms  there  is  not  only  common 
ownership,  but  —  so  far  as  the  land  can  be  said  to  be  occupied  — 

1  C/.  Schoolcraft  —  Drake,  vol.  i.  p.  222.  "Theft  is  very  scandalous 
among  them  since  they  have  no  locks  but  those  of  their  minds  to  preserve 
their  goods."  (From  Coldan's  account.)  Among  the  Dakotas  pilfering 
by  women  and  children  was  common,  l)ut  the  men  despised  it  as  too  low  a 
practice  for  them.      (lb.,  vol.  i.  p.  206.) 

2  In  Rome  the  Law  of  the  Twelve  Tables  —  like  most  laws  of  that 
stage  —  distinguished  the  thief  caught  in  the  act  —  the  fur  77ianifesius 
■ — from  the  tliief  not  caught  in  the  act  —  the /wr  7iec  nwuifesiiis.  The 
latter  must  make  double  restitution,  the  former  is  punished  corporally 
—  in  the  case  of  robbery  by  night  or  with  the  strong  hand,  by  death ;  in 
other  eases  by  beating  and  slavery.  In  the  later  legislation  the  injured 
party  had  choice  of  a  new  form  of  criminal  action  whereby  corporal 
punishment  might  be  inflicted,  or  of  the  actio  furti  which  carried  infamia 
and  double  or  quadruple  restitution.  {Girard,  pp.  392-394.)  In  the  Code 
of  Hammwrabi,  both  death  and  restitution  are  recognized.  (Sections  6 
and  following.)  Manu  prescribes  fines,  corporal  punishment  and  muti- 
lations for  thefts  of  various  Idnds  (viii.  319  ff.). 


Chap.  XXI,  §  2.]  THE    LAW   OF   PROPERTY  377 

common  occupation.  A  group  of  Australians  wander  over  a  cer- 
tain area  with  assignable  boundaries,  which  of  course  they  main- 
tain against  others.^  The  Red  Indians  hunt  a  certain  district, 
which  is  special  to  each  tribe,  but  common  to  all  within  it.-  Even 
the  produce  of  the  hunting  is  often  common,  or  is  distributed  by 
fixed  customary  rules.  All  the  tribes  who  hunt  in  the  plains, 
except  the  half-bred  Crees,  are  said  to  make  common  stock  of  the 
booty.^  When  agriculture  begins  the  land  is  generally  portioned 
out,  at  least  temporarily,  to  the  totems  or  the  family  groups  within 
the  tribe.  But  within  the  family  group  the  produce  is  still  com- 
mon, and  the  land  itself  is  still  the  common  property  of  the  tribe 
as  a  whole* 

We  have  here  two  kinds  of  communism,  a  wider  and  a  narrower, 
and  these  persist  with  various  modifications  through  much  higher 
grades  of  culture.  We  see  the  transition  to  the  division  of  the 
tribal  property  among  the  households  in  such  an  instance  as  that 
of  the  Iroquois,  where  families  may  possess  and  retain  common 
lands  by  occupying  them,  though  the  land  remains  strictl\'  the 
property  of  the  tribe.^     When  a  division  is  made,  the  allotments 

1  Spencer  and  Gillen,  i.  p.  8. 

^  Kohler,  "Zeitschrift  fur  vgl.  Rwst.,"  1897,  p.  402. 

^  Morgan,  "House  and  Houselife  of  the  American  Aborigines,"  p.  69. 
He  adds  that  the  tribes  of  the  Columbia  River  make  common  stock  of  the 
fishing.  Among  the  Western  Esquimaux  any  one  may  take  the  game  from 
the  snares,  while  all  large  game  is  common.  {Rectus,  p.  111.)  Among 
the  South  American  Indians  the  common  hunt  yields  common  booty,  but 
there  may  also  be  private  hunting.  The  captor  has  the  right  to  a  pris- 
oner's head,  while  the  neighbours  have  the  rest  of  him,  but  if  the  captive 
is  enslaved  he  belongs  to  the  community.  {Schmidt,  "Z.  f.  V.  R.,"  1898, 
p.  311.)  The  non-agricultural  tribes  of  Africa  know  no  division  of  land. 
{Post,  "Afrik.  Juris.,"  vol.  ii.  p.  167.) 

*  Among  the  Crees  each  village  had  a  common  field  divided  into 
patches  for  each  family,  the  harvest  was  conducted  in  common,  and  a 
certain  portion  was  set  aside  for  the  common  store  out  of  which  the  needy 
were  supported.  Among  the  Iroquois,  the  land  was  the  property  of  the 
tribe.  The  harvest  was  carried  out  by  the  joint  family  in  common,  and  the 
products  distributed  l)y  the  women  among  the  different  departments ; 
though  the  village  did  not  make  a  common  stock,  the  obligations  of 
hospitality  would  prevent  anybody  from  going  short.  {Morgan,  "House- 
life,"  pp.  61-66.)  Common  cultivation  and  division  of  the  harvest  is  also 
found  on  the  Sierra  Leone  Coast.  {Post,  "Afrik.  .Juris.,"  ii.  p.  172.) 
Sometimes  the  communism  is  of  a  rough  and  general  character  rather  than 
a  matter  of  distinct  right.  Among  some  of  the  Papuans,  for  instance, 
every  one  is  expected  to  give  when  asked.  "The  people  is  God,"  it  is 
irreligious  to  refuse  anything.  We  see  here  the  borderland  between  regu- 
lar communism  and  the  indiscriminate  profusion  and  liberality  which  are 
such  common  characteristics  of  primitive  life.  {Kohler,  "Z.  f.  V.  R.," 
1900,  p.  368.) 

^Morgan,  "League  of  the  Iroquois,"  p.  326.  Similarl.v  among  the 
Yoruba,  the  land  belongs  to  the  tribe,  but  it  is  vested  in  the  chief,  who 
allots  it  to  the  householders  according  to  their  requirements,  and  it  be- 
comes hereditary  and  inalienable.     {Ellis,  "Yoruba,"  p.  188.) 


0/8  THINGS  [Part  III. 

may  only  last  for  a  short  period  —  perhaps  a  year  or  two ;  ^  often, 
again,  they  depend  on  cultivation,-  and  if  deserted  the  land  reverts 
to  the  community.  But  such  divisions  may  also  become  custom- 
ary and  periodical,  so  that  there  is  a  redistribution  at  the  end  of  a 
fixed  period.  Or,  lastly,  the  redistribution  may  be  given  up,^ 
and  the  lots  become  family  property,  but  the  eminent  rights  of 
the  community  are  still  recognized  —  for  instance,  in  customs 
regulating  the  methods  of  cultivation  or  forbidding  alienation 
without  its  consent.  These  rights  will  also  be  found  surviving 
in  the  common  pasture,  and  with  still  greater  persistence  in  the 
common  woodland. 

But  while  the  communism  of  the  village  gradually  wastes  away, 
there  is  also  a  communism  on  a  smaller  scale  which  forms  the 
economic  basis  of  the  joint  family.  The  joint  family  consists  of 
a  whole  group  of  relations  connected  by  father-right  or  mother- 
right,  as  the  case  may  be ;  the  property  of  this  group  is  generally 
administered  by  the  head,  but  is  owned  and  its  produce  shared 
by  all  in  common.  It  is  in  strictness  indivisible  and  inalienable. 
It  can  neither  be  sold,  given  away  nor  bequeathed.  But  within 
this  communistic  scheme  we  find  private  property  arising  in  a 
variety  of  forms  in  very  different  degrees.  Thus,  individual 
members  may  acquire  a  peculium  on  certain  conditions.  For 
example,  the  daughter,  who  is  allowed  to  retain  the  savings  of  her 
industry  and  take  them  away  with  her  on  marriage  as  her  dowry.* 
Again,  the  joint  family  may  break  up  into  separate  families ; 
alienation  may  be  allowed  under  varying  restrictions ;  *  or,  finally, 

1  This  is  common  among  the  North  American  Indians.  {Kohler, 
"Z.  f.  V.  R.,"  1897,  p.  402.) 

2  E.g.  in  many  African  tribes  land  is  only  appropriated  while  in  use. 
On  the  other  hand,  land  often  becomes  hereditary  among  the  Foulah  of 
Futajallon,  among  the  Mandingos  and  the  Somali,  but  uncultivated  land 
falls  back  to  the  community.      {Post,  "A.  J.,"  ii.  169,  170.) 

In  the  Code  of  Hammurabi,  it  would  seem  that  leaving  the  land  un- 
occupied for  three  years  destroys  the  title  to  it  as  against  another  person 
who  has  occupied  and  cultivated  it.      (Clause  30.) 

'  Thus  in  India,  though  the  lots  have  become  inalienable,  the  tradition 
of  redistribution  remains.  (Mayne,  p.  112.)  On  the  other  hand,  in  the 
Russian  Mir,  the  system  of  periodical  redistribution  is,  according  to 
Kovalewslcy,  an  innovation.  ("Modern  Customs  and  Ancient  Laws  of 
Russia,"    p.    93,    etc.) 

*  This  appears  to  be  the  only  form  of  private  property  in  the  Russian 
joint  family  down  to  the  present  day.  (Kovalewsky,  "Modern  Customs," 
p.  59.) 

*  A  strong  case  is  the  Hebrew  Law  of  Jubilee  by  which  all  land  reverted 
to  its  original  owners  at  the  end  of  fiftj^  years  ;  this  in  effect  pro^^ded  that 
family  property  should  not  be  permanently  alienable.  The  proprietary 
rights  of  the  tribe  are  also  maintained  in  the  priestly  code  by  the  rule  pro- 
hibiting daughters  who,  failing  sons,  have  inherited  property,  to  marry  out 
of  the  tribe.     (Numbers  xxxvi.)     IVIore  commonly  a  right  of  repurchase 


Chap.  XXI,  §  2.]  THE    LAW   OF   PROPERTY  379 

the  house-father  may  acquire  so  much  predominance  ^  that  the 
common  rights  are  merged  in  him. 

Without  attempting  to  generaHze  as  to  the  procesess  by  which 
the  village  or  family  communism  breaks  up,  we  may  leave  the  few 
points  thus  noted  to  suggest  the  various  methods  of  transition 
that  are  possible  and  the  number  of  gradations  whereby  the  sys- 
tem of  private  ownership  may  be  approached.  But  we  must 
note,  further,  that  with  the  rise  of  the  monarchical  or  aristocratic 
kingdom  the  communal  system  is  apt  to  be  qualified  or  super- 
seded by  some  form  of  feudal  tenure.  Vassalage  and  overlordship 
replace  the  patriarchate  or  the  joint  family.  Again,  the  break 
up  of  the  feudal  organization  in  the  more  advanced  societies  makes 
room  for  private  ownership.  But  even  here  in  relation  to  land 
there  are  limitations.  Law  or  custom  limits  the  freedom  of  be- 
quest and  determines  the  rules  of  inheritance,  so  that  the  apparent 
owner  is  more  often  than  not  a  life  tenant  only.  With  these 
qualifications,  however,  we  may  consider  private  property  in  land 
as  the  general  rule  in  the  more  advanced  civilizations.  In  relation 
to  other  forms  of  property  the  emancipation  of  the  individual  is 
probably  more  rapid  and  certainly  more  complete.  The  impor- 
tance of  "  stock"  or  "  capital"  becomes  greater  as  the  arts  of  life 
improve,  and  here,  as  the  joint  family  breaks  up,  the  individual 
becomes  absolute  owner.  The  evolving  conception  of  property 
as  an  absolute  personal  right  has  full  swing,  and  in  proportion  as 
industry  and  commerce  advance  becomes  more  and  more  a  cardinal 
point  in  the  common  life  of  society. 

It  would  appear,  then,  that  a  double  process  of  development 
lies  behind  the  modern  institution  of  private  property.  On  the 
one  hand,  there  is  the  gradual  emergence  of  the  right  of  ownership 
as  a  right.  On  the  other,  there  is  the  gradual  extension  of  owner- 
ship by  individuals  as  against  ownership  b}'  families,  clans,  villages, 

remains  where  alienation  has  been  allowed.  The  French  right  of  retrail 
lignager  was  not  finally  abolished  till  1790.      {Viollet,  p.  563.) 

^  In  early  Rome  the  family  property  was  conjoint,  but  the  sj^stem  was 
much  modified  bj-  the  power  of  the  Roman  paterfamilias  and  also  by  the 
right  of  the  heirs  to  demand  partition  at  the  death  of  the  father.  There 
was  also  probably  a  ^\'ider  primitive  community  of  land  as  between  pos- 
sibly the  whole  people  or  more  probably  the  gens.      (Girard,  p.  249.) 

For  the  varying  positions  of  the  father  in  the  Indian  household,  see 
J.  D.  Mayne,  "Hindu  Law  and  Usage,"  p.  222  and  follo^^^ng.  Mayne 
makes  the  distinction  between  the  patriarchal  and  the  joint  family  turn 
on  the  question  whether  on  the  death  of  the  eldest  ascendant  the  family 
do  or  do  not  remain  together  (p.  223).  He  points  out  that  under  the 
patriarchate  all  acquired  property  fell  to  the  father.  In  this  stage  the 
head  of  the  household  acquires  private  property  indeed,  but  at  the  ex- 
pense of  all  the  rest. 


380  THINGS  [Part  III. 

or  tribes  —  an  extension  standing  in  close  relation  to  the  general 
break  up  of  the  primitive  group  and  the  emergence  of  the  free 
responsible  individual  as  an  ethical  and  legal  personality.  It 
appears  to  be  only  in  relatively  high  civilizations  that  private 
property,  getting  within  its  scope  the  land  and  —  with  still  more 
completeness  —  the  other  leading  means  of  production,  becomes 
the  dominant  factor  in  the  economic  organization  of  society. 

Section  3 

EARLY  HISTORY  OF  PROPERTY  AND  THE    VILLAGE   COM- 
MUNITY 1 

The  Village  Community  is  known  to  be  of  immense  antiquity. 
In  whatever  direction  research  has  been  pushed  into  Indian  history, 
general  or  local,  it  has  always  found  the  Community  in  existence  at 
the  farthest  point  of  its  progress.  A  great  number  of  intelligent 
and  observant  writers,  most  of  whom  had  no  theory  of  any  sort 
to  support  concerning  its  nature  and  origin,  agree  in  considering  it 
the  least  destructible  institution  of  a  society  which  never  willingly 
surrenders  any  one  of  its  usages  to  innovation.  Conquests  and 
revolutions  seem  to  have  swept  over  it  without  disturbing  or 
displacing  it,  and  the  most  beneficent  systems  of  government  in 
India  have  always  been  those  which  have  recognised  it  as  the  basis 
of  administration. 

The  mature  Roman  law,  and  modern  jurisprudence  following  in 
its  wake,  look  upon  co-ownership  as  an  exceptional  and  momentary 
condition  of  the  rights  of  property.  This  view  is  clearly  indicated 
in  the  maxim  which  obtains  universally  in  Western  Europe,  Nemo 
in  communione  potest  invitus  detineri  ("No  one  can  be  kept  in  co- 
proprietorship  against  his  will ").  But  in  India  this  order  of  ideas 
is  reversed,  and  it  may  be  said  that  separate  proprietorship  is  always 
on  its  way  to  become  proprietorship  in  common.  ...  As  soon 
as  a  son  is  born,  he  acquires  a  vested  interest  in  his  father's  sub- 
stance, and  on  attaining  years  of  discretion  he  is  even,  in  certain 
contingencies,  permitted  by  the  letter  of  the  law  to  call  for  a  parti- 
tion of  the  family  estate.  As  a  fact,  however,  a  division  rarely 
takes  place  even  at  the  death  of  the  father,  and  the  property 
constantly  remains  undivided  for  several  generations,  though 
every  member  of  every  generation  has  a  legal  right  to  an  undivided 
share  in  it.     The  domain  thus  held  in  common  is  sometimes  ad- 

1  [By  Henry  S.  Maine.  Reprinted  from  ''Ancient  Law,"  by  permission 
of  Henry  Holt  and  Company,  New  York.] 


Chap.  XXI,  §  3.]  THE    LAW   OF   PROPERTY  381 

ministered  by  an  elected  manager,  but  more  generally,  and  in  some 
provinces  always,  it  is  managed  by  the  eldest  agnate,  by  the  eldest 
representative  of  the  eldest  line  of  the  stock.  Such  an  assemblage 
of  joint  proprietors,  a  body  of  kindred  holding  domain  in  common, 
is  the  simplest  form  of  an  Indian  Village  Community,  but  the 
Community  is  more  than  a  brotherhood  of  relatives  and  more  than 
an  association  of  partners.  It  is  an  organised  society,  and  besides 
providing  for  the  management  of  the  common  fund,  it  seldom 
fails  to  provide,  by  a  complete  staff  of  functionaries,  for  internal 
government,  for  police,  for  the  administration  of  justice,  and  for 
the  apportionment  of  taxes  and  public  duties. 

The  process  which  I  have  described  as  that  under  which  a  Village 
Community  is  formed,  may  be  regarded  as  typical.  Yet  it  is  not 
to  be  supposed  that  every  Village  Community  in  India  drew  to- 
gether in  so  simple  a  manner.  Although,  in  the  North  of  India, 
the  archives,  as  I  am  informed,  almost  invariably  show  that  the 
Community  was  founded  by  a  single  assemblage  of  blood-relations, 
they  also  supply  information  that  men  of  alien  extraction  have 
always,  from  time  to  time,  been  engrafted  on  it,  and  a  mere  pur- 
chaser of  a  share  may  generally,  under  certain  conditions,  be  ad- 
mitted to  the  brotherhood.  In  the  South  of  the  Peninsula  there 
are  often  Communities  which  appear  to  have  sprung  not  from 
one  but  from  two  or  more  families  :  and  there  are  some  whose  com- 
position is  known  to  be  entirely  artificial ;  indeed,  the  occasional 
aggregation  of  men  of  different  castes  in  the  same  society  is  fatal 
to  the  hypothesis  of  a  common  descent.  Yet  in  all  these  brother- 
hoods either  the  tradition  is  preserved,  or  the  assumption  made,  of 
an  original  common  parentage.  Mountstuart  Elphinstone,  who 
writes  more  particularly  of  the  Southern  Village  Communities, 
observes  of  them  ("History  of  India,"  p.  71,  1905  edn.)  :  "The 
popular  notion  is  that  the  Village  landholders  are  all  descended 
from  one  or  more  individuals  who  settled  the  Village ;  and  that 
the  only  exceptions  are  formed  by  persons  who  have  derived  their 
rights  by  purchase  or  otherwise  from  members  of  the  original  stock. 
The  supposition  is  confirmed  by  the  fact  that,  to  this  day,  there 
are  only  single  families  of  landholders  in  small  villages  and  not 
many  in  large  ones ;  but  each  has  branched  out  into  so  many 
members  that  it  is  not  uncommon  for  the  whole  agricultural 
labour  to  be  done  by  the  landholders,  without  the  aid  either  of 
tenants  or  of  labourers.  The  rights  of  the  landholders  are  theirs 
collectively,  and,  though  they  almost  always  have  a  more  or  less 
perfect  partition  of  them,  they  never  have  an  entire  separation.     A 


382  THINGS  [Part  III. 

landholder,  for  instance,  can  sell  or  mortgage  his  rights ;  but  he 
must  first  have  the  consent  of  the  Milage,  and  the  purchaser  steps 
exactly  into  his  place  and  takes  up  all  his  obligations.  If  a  family 
becomes  extinct,  its  share  returns  to  the  common  stock." 

.  .  .  No  institution  of  the  primitive  world  is  likely  to  have  been 
preserved  to  our  day,  unless  it  has  acquired  an  elasticity  foreign  to 
its  original  nature  through  some  vivifying  legal  fiction.  The  Vil- 
lage Community  then  is  not  necessarily  an  assemblage  of  blood-rela- 
tions, but  it  is  eitJier  such  an  assemblage  or  a  body  of  co-proprietors 
formed  on  the  model  of  an  association  of  kinsmen.  The  type  with 
which  it  should  be  compared  is  e^•idently  not  the  Roman  Family, 
but  the  Roman  Gens  or  House.  The  Gens  was  also  a  group  on  the 
model  of  the  family ;  it  was  the  family  extended  by  a  variety  of 
fictions  of  which  the  exact  nature  was  lost  in  antiquity.  In 
historical  times,  its  leading  characteristics  were  the  very  two  which 
Elphinstone  remarks  in  the  Village  Community.  There  was  al- 
ways the  assumption  of  a  common  origin,  an  assumption  sometimes 
notoriously  at  variance  with  fact :  and,  to  repeat  the  historian's 
words,  "if  a  family  became  extinct,  its  share  returned  to  the  com- 
mon stock."  In  old  Roman  law,  unclaimed  inheritances  escheated 
to  the  Gentiles.  It  is  further  suspected  by  all  who  have  examined 
their  history  that  the  Communities,  like  the  Gentes,  have  been 
very  generally  adulterated  by  the  admission  of  strangers,  but  the 
exact  mode  of  absorption  cannot  now  be  ascertained.  At  present, 
they  are  recruited,  as  Elphinstone  tells  us,  by  the  admission  of 
purchasers,  with  the  consent  of  the  brotherhood.  The  acquisition 
of  the  adopted  member  is,  however,  of  the  nature  of  a  universal 
succession ;  together  with  the  share  he  has  bought,  he  succeeds 
to  the  liabilities  which  the  ^'endor  had  incurred  towards  the  aggre- 
gate group.  He  is  an  Emptor  Familise,  and  inherits  the  legal 
clothing  of  the  person  whose  place  he  begins  to  fill.  The  consent 
of  the  whole  brotherhood  reciuired  for  his  admission  may  remind 
us  of  the  consent  which  the  Comitia  Curiata,  the  Parliament  of  that 
larger  brotherhood  of  self-styled  kinsmen,  the  ancient  Roman 
commonwealth,  so  strenuously  insisted  on  as  essential  to  the  legal- 
isation of  an  Adoption  or  the  confirmation  of  a  will. 

The  tokens  of  an  extreme  antiquity  are  discoverable  in  almost 
every  single  feature  of  the  Indian  ^'illage  Communities.  We  have 
so  many  independent  reasons  for  suspecting  that  the  infancy  of 
law  is  distinguished  by  the  prevalence  of  co-ownership,  by  the 
intermixture  of  personal  with  proprietary  rights,  and  by  the  con- 
fusion of  public  with  private  duties,  that  we  should  be  justified  in 


Chap.  XXI,  §  3.]  THE  -LAW   OF   PROPERTY  383 

deducing  many  important  conclusions  from  our  observation  of  these 
proprietary  brotherhoods,  even  if  no  similarly  compounded 
societies  could  be  detected  in  any  other  part  of  the  world.  It 
happens,  however,  that  much  earnest  curiosity  has  been  very 
recently  attracted  to  a  similar  set  of  phenomena  in  those  parts  of 
Europe  which  have  been  most  slightly  affected  by  the  feudal 
transformation  of  property,  and  which  in  many  important  partic- 
ulars have  as  close  an  aflSnity  with  the  Eastern  as  with  the  Western 
world.  The  researches  of  M.  de  Haxthausen,  M.  Tengoborski, 
and  others,  have  shown  us  that  the  Russian  villages  are  not  fortui- 
tous assemblages  of  men,  nor  are  they  unions  founded  on  contract ; 
they  are  naturally  organised  communities  like  those  of  India.  It 
is  true  that  these  villages  are  always  in  theory  the  patrimony  of 
some  noble  proprietor,  and  the  peasants  have  within  historical 
times  been  converted  into  the  predial,  and  to  a  great  extent  into 
the  personal,  serfs  of  the  seignior.  But  the  pressure  of  this  superior 
ownership  has  never  crushed  the  ancient  organisation  of  the 
village,  and  it  is  probable  that  the  enactment  of  the  Czar  of  Russia, 
who  is  supposed  to  have  introduced  serfdom,  was  really  intended 
to  prevent  the  peasants  from  abandoning  that  co-operation  without 
which  the  old  social  order  could  not  long  be  maintained.  In  the 
assumption  of  an  agnatic  connection  between  the  villagers,  in  the 
blending  of  personal  rights  with  privileges  of  ownership,  and  in  a 
variety  of  spontaneous  provisions  for  internal  administration,  the 
Russian  village  appears  to  be  a  nearly  exact  repetition  of  the 
Indian  Community ;  but  there  is  one  important  difference  which 
we  note  with  the  greatest  interest.  The  co-owners  of  an  Indian 
village,  though  their  property  is  blended,  have  their  rights  distinct, 
and  this  separation  of  rights  is  complete  and  continues  indefinitely. 
The  severance  of  rights  is  also  theoretically  complete  in  a  Russian 
village,  but  there  it  is  only  temporary.  After  the  expiration  of  a 
given,  but  not  in  all  cases  of  the  same,  period,  separate  ownerships 
are  extinguished,  the  land  of  the  village  is  thrown  into  a  mass,  and 
then  it  is  redistributed  among  the  families  composing  the  com- 
munity, according  to  their  number.  This  repartition  having  been 
effected,  the  rights  of  families  and  of  individuals  are  again  allowed 
to  branch  out  into  various  lines,  which  they  continue  to  follow 
till  another  period  of  division  comes  round.  An  even  more  curious 
variation  from  this  type  of  ownership  occurs  in  some  of  those 
countries  which  long  formed  a  debatable  land  between  the  Turkish 
Empire  and  the  possessions  of  the  House  of  Austria.  In  Servia, 
in  Croatia,  and  the  Austrian  Sclavonia,  the  villages  are  also  brother- 


384  THINGS  [Part  III. 

hoods  of  persons  who  are  at  once  co-owners  and  kinsmen  ;  but  there 
the  internal  arrangements  of  the  community  differ  from  those 
adverted  to  in  the  last  two  examples.  The  substance  of  the  com- 
mon property  is  in  this  case  neither  divided  in  practice  nor  con- 
sidered in  theory  as  divisible,  but  the  entire  land  is  cultivated  by 
the  combined  labour  of  all  the  villagers,  and  the  produce  is  annually 
distributed  among  the  households,  sometimes  according  to  their 
supposed  wants,  sometimes  according  to  rules  which  give  to  partic- 
ular persons  a  fixed  share  of  the  usufruct.  All  these  practices 
are  traced  by  the  jurists  of  the  East  of  Europe  to  a  principle  which 
is  asserted  to  be  found  in  the  earliest  Sclavonian  laws,  the  principle 
that  the  property  of  families  cannot  be  divided  for  a  perpetuity. 
The  great  interest  of  these  phenomena  in  an  inquiry  like  the 
present  arises  from  the  light  they  throw  on  the  development  of 
distinct  proprietary  rights  inside  the  groups  by  which  property 
seems  to  have  been  originally  held.  We  have  the  strongest  reason 
for  thinking  that  property  once  belonged  not  to  individuals  nor 
even  to  isolated  families,  but  to  larger  societies  composed  on  the 
patriarchal  model ;  but  the  mode  of  transition  from  ancient  to 
modern  ownerships,  obscure  at  best,  would  have  been  infinitely 
obscurer  if  several  distinguishable  forms  of  Village  Communities 
had  not  been  discovered  and  examined.  It  is  worth  while  to  attend 
to  the  varieties  of  internal  arrangement  within  the  patriarchal 
groups  which  are,  or  were  till  recently,  observable  among  races  of 
Indo-European  blood.  The  chiefs  of  the  ruder  Highland  clans 
used,  it  is  said,  to  dole  out  food  to  the  heads  of  the  households  under 
their  jurisdiction  at  the  very  shortest  intervals,  and  sometimes 
day  by  day.  A  periodical  distribution  is  also  made  to  the  Sclavo- 
nian villagers  of  the  Austrian  and  Turkish  provinces  by  the  elders 
of  their  body,  but  then  it  is  a  distribution  once  for  all  of  the  total 
produce  of  the  year.  In  the  Russian  villages,  however,  the  sub- 
stance of  the  property  ceases  to  be  looked  upon  as  indivisible, 
and  separate  proprietary  claims  are  allowed  freely  to  grow  up,  but 
then  the  progress  of  separation  is  peremptorily  arrested  after  it  has 
continued  a  certain  time.  In  India,  not  only  is  there  no  indivisi- 
bility of  the  common  fund,  but  separate  proprietorship  in  parts  of 
it  may  be  indefinitely  prolonged  and  may  branch  out  into  any 
number  of  derivative  ownerships,  the  de  facto  partition  of  the 
stock  being,  however,  checked  by  inveterate  usage,  and  by  the 
rule  against  the  admission  of  strangers  without  the  consent  of  the 
brotherhood.  It  is  not  of  course  intended  to  insist  that  these  differ- 
ent forms  of  the  Village  Community  represent  distinct  stages  in  a 


Chap.  XXI,  §  3.]  THE    LAW    OF    PROPERTY  385 

process  of  transmutation  which  has  been  even-where  accomplished 
in  the  same  manner.  But,  though  the  evidence  does  not  warrant 
our  going  so  far  as  this,  it  renders  less  presumptuous  the  conjec- 
ture that  private  property,  in  the  shape  in  which  we  know  it,  was 
chiefly  formed  by  the  gradual  disentanglement  of  the  separate 
rights  of  individuals  from  the  blended  rights  of  a  community.  Our 
studies  in  the  Law  of  Persons  seemed  to  show  us  the  Family  ex- 
panding into  the  Agnatic  group  of  kinsmen ;  then  the  Agnatic 
group  dissolving  into  separate  households ;  lastly,  the  household 
supplanted  by  the  individual ;  and  it  is  now  suggested  that  each 
step  in  the  change  corresponds  to  an  analogous  alteration  in  the  na- 
ture of  Ownership.  If  there  be  any  truth  in  the  suggestion,  it  is  to 
be  observed  that  it  materially  affects  the  problem  which  theorists 
on  the  origin  of  Property  have  generally  proposed  to  themselves. 
The  question  —  perhaps  an  insoluble  one  —  which  they  have 
mostly  agitated  is,  what  were  the  motives  which  first  induced 
men  to  respect  each  other's  possessions?  It  may  still  be  put, 
without  much  hope  of  finding  an  answer  to  it,  in  the  form  of  an 
inquiry  into  the  reasons  which  led  one  composite  group  to  keep 
aloof  from  the  domain  of  another.  But,  if  it  be  true  that  far  the 
most  important  passage  in  the  history  of  Private  Property  is  its 
gradual  separation  from  the  co-ownership  of  kinsmen,  then  the 
great  point  of  inquiry  is  identical  with  that  which  lies  on  the  thresh- 
old of  all  historical  law  —  what  were  the  motives  which  originally 
prompted  men  to  hold  together  in  the  family  union?  To  such  a 
question.  Jurisprudence,  unassisted  by  other  sciences,  is  not  com- 
petent to  give  a  reply.     The  fact  can  only  be  noted. 

The  undivided  state  of  property  in  ancient  societies  is  consistent 
with  a  peculiar  sharpness  of  division,  which  shows  itself  as  soon  as 
any  single  share  is  completely  separated  from  the  patrimony  of  the 
group.  This  phenomenon  springs,  doubtless,  from  the  circum- 
stance that  the  property  is  supposed  to  become  the  domain  of  a 
new  group,  so  that  any  dealing  with  it,  in  its  divided  state,  is  a 
transaction  between  two  highly  complex  bodies.  I  have  already 
compared  Ancient  Law  to  Modern  International  Law,  in  respect 
of  the  size  and  complexity  of  the  corporate  associations,  whose 
rights  and  duties  it  settles.  As  the  contracts  and  conveyances 
known  to  ancient  law  are  contracts  and  conveyances  to  which 
not  single  individuals,  but  organised  companies  of  men,  are  parties, 
they  are  in  the  highest  degree  ceremonious ;  they  require  a  variety 
of  symbolical  acts  and  words  intended  to  impress  the  business  on 
the  memory  of  all  who  take  part  in  it ;  and  they  demand  the  pres- 


386  THINGS  [Part  III. 

once  of  an  inordinate  number  of  witnesses.  From  these  peculiari- 
ties, and  others  allied  to  them,  springs  the  universally  unmalleable 
character  of  the  ancient  forms  of  property.  Sometimes  the  patri- 
mony of  the  family  is  absolutely  inalienable,  as  Avas  the  case  with 
the  Sclavonians,  and  still  oftener,  though  alienations  may  not  be 
entirely  illegitimate,  they  are  virtually  impracticable,  as  among 
most  of  the  Germanic  tribes,  from  the  necessity  of  having  the 
consent  of  a  large  number  of  persons  to  the  transfer.  Where  these 
impediments  do  not  exist,  or  can  be  surmounted,  the  act  of  con- 
veyance itself  is  generally  burdened  with  a  perfect  load  of  ceremony, 
in  which  not  one  iota  can  be  safely  neglected.  Ancient  law  uni- 
formly refuses  to  dispense  with  a  single  gesture,  however  grotesque  ; 
with  a  single  syllable,  however  its  meaning  may  have  been  for- 
gotten ;  with  a  single  witness,  however  superfluous  may  be  his 
testimony.  The  entire  solemnities  must  be  scrupulously  com- 
pleted by  persons  legally  entitled  to  take  part  in  it,  or  else  the 
conveyance  is  null,  and  the  seller  is  re-established  in  the  rights  of 
which  he  had  vainly  attempted  to  divest  himself. 

These  Various  obstacles  to  the  free  circulation  of  the  objects  of 
use  and  enjoyment,  begin  of  course  to  make  themselves  felt  as  soon 
as  society  has  acquired  even  a  slight  degree  of  activity,  and  the 
expedients  by  which  advancing  communities  endeavour  to  over- 
come them  form  the  staple  of  the  history  of  Property.  Of  such 
expedients  there  is  one  which  takes  precedence  of  the  rest  from 
its  antiquity  and  universality.  The  idea  seems  to  have  spontane- 
ously suggested  itself  to  a  great  number  of  early  societies,  to  classify 
property  into  kinds.  One  kind  or  sort  of  property  is  placed  on 
a  lower  footing  of  dignity  than  the  others,  but  at  the  same  time  is 
relieved  from  the  fetters  which  antiquity  has  imposed  on  them. 
Subsequently,  the  superior  convenience  of  the  rules  governing  the 
transfer  and  descent  of  the  lower  order  of  property  becomes  gener- 
ally recognised,  and  by  a  gradual  course  of  innovation  the  plasticity 
of  the  less  dignified  class  of  valuable  objects  is  communicated  to 
the  classes  which  stand  conventionally  higher.  The  history  of 
Roman  Property  Law  is  the  history  of  the  assimilation  of  Res 
Mancipi  to  Res  Nee  Mancipi.  The  history  of  Property  on  the 
European  continent  is  the  history  of  the  subversion  of  the  feudal- 
ised law  of  land  by  the  Romanised  law  of  movables ;  and  though 
the  history  of  ownership  in  England  is  not  nearly  completed,  it 
is  visibly  the  law  of  personalty  which  threatens  to  absorb  and 
annihilate  the  law  of  realty. 

The  only  natural  classification  of  the  objects  of  enjoyment,  the 


Chap.  XXI,  §  3.]  THE    LAW   OF   PROPERTY  387 

only  classification  which  corresponds  with  an  essential  difference 
in  the  subject-matter,  is  that  which  divides  them  into  ^Movables 
and  Immovables.  Familiar  as  is  this  classification  to  jurispru- 
dence it  was  very  slowly  developed  by  Roman  law,  from  which 
we  inherit  it,  and  was  only  finally  adopted  by  it  in  its  latest  stage. 
The  classifications  of  Ancient  Law  have  sometimes  a  superficial 
resemblance  to  this.  They  occasionally  divide  property  into 
categories,  and  place  immovables  in  one  of  them ;  but  then  it  is 
found  that  they  either  class  along  with  immovables  a  number  of 
objects  which  have  no  sort  of  relation  wdth  them,  or  else  divorce 
them  from  various  rights  to  which  they  have  a  close  affinity.  Thus 
the  Res  Mancipi  of  Roman  Law  included  not  only  land  but  slaves, 
horses,  and  oxen.  Scottish  law^  ranks  with  land  a  certain  class  of 
securities,  and  Hindoo  law  associates  it  with  slaves.  English  law, 
on  the  other  hand,  parts  leases  of  land  for  years  from  other  interests 
in  the  soil,  and  joins  them  to  personalty  under  the  name  of  chattels 
real.  Moreover,  the  classifications  of  Ancient  Law  are  classi- 
fications implying  superiority  and  inferiority ;  while  the  distinc- 
tion between  movables  and  immovables,  so  long  at  least  as  it  was 
confined  to  Roman  jurisprudence,  carried  with  it  no  suggestion 
whatever  of  a  difference  in  dignity.  The  Res  Mancipi,  however, 
did  certainly  at  first  enjoy  a  precedence  over  the  Res  Xec  ^Mancipi, 
as  did  heritable  property  in  Scotland,  and  realty  in  England,  over 
the  personalty  to  which  they  were  opposed.  The  lawyers  of  all 
systems  have  spared  no  pains  in  striving  to  refer  these  classifica- 
tions to  some  intelligible  principle  ;  but  the  reasons  of  the  severance 
must  ever  be  vainly  sought  for  in  the  philosophy  of  law :  they 
belong  not  to  its  philosophy,  but  to  its  history.  The  explanation 
which  appears  to  cover  the  greatest  number  of  instances  is,  that 
the  objects  of  enjoyment  honoured  above  the  rest  were  the  forms 
of  property  known  first  and  earliest  to  each  particular  community, 
and  dignified  therefore  emphatically  with  the  designation  of 
Property.  On  the  other  hand,  the  articles  not  enumerated  among 
the  favoured  objects  seem  to  have  been  placed  on  a  lower  standing 
because  the  knowledge  of  their  value  was  posterior  to  the  epoch  at 
which  the  catalogue  of  superior  property  was  settled.  They  were 
at  first  unknown,  rare,  limited  in  their  uses,  or  else  regarded  as 
mere  appendages  to  the  privileged  objects.  Thus,  though  the 
Roman  Res  jNIancipi  included  a  number  of  movable  articles  of 
great  value,  still  the  most  costly  jewels  were  never  allowed  to 
take  rank  as  Res  ^Mancipi,  because  they  were  unknown  to  the 
early  Romans.     In  the  same  way  chattels  real  in  England  are  said 


388  THINGS  [Part  III. 

to  have  been  degraded  to  the  footing  of  personalty,  from  the  infre- 
quency  and  vahielessness  of  such  estates  under  the  feudal  land- 
law.  But  the  grand  point  of  interest  is  the  continued  degradation 
of  these  commodities  when  their  importance  had  increased  and 
their  number  had  multiplied.  Why  were  they  not  successively 
included  among  the  favoured  objects  of  enjo;vTiient  ?  One  reason 
is  found  in  the  stubbornness  with  which  Ancient  Law  adheres  to  its 
classifications.  It  is  a  characteristic  both  of  uneducated  minds 
and  of  early  societies,  that  they  are  little  able  to  conceive  a  general 
rule  apart  from  the  particular  applications  of  it  with  which  they 
are  practically  familiar.  They  cannot  dissociate  a  general  term 
or  maxim  from  the  special  examples  which  meet  them  in  daily 
experience ;  and  in  this  way  the  designation  covering  the  best- 
known  forms  of  property  is  denied  to  articles  which  exactly  re- 
semble them  in  being  objects  of  enjoyment  and  subjects  of  right. 
But  to  these  influences,  which  exert  peculiar  force  in  a  subject- 
matter  so  stable  as  that  of  law,  are  afterwards  added  others  more 
consistent  with  progress  in  enlightenment  and  in  the  conceptions 
of  general  expediency.  Courts  and  lawyers  become  at  last  alive 
to  the  inconvenience  of  the  embarrassing  formalities  required  for 
the  transfer,  recovery,  or  devolution  of  the  favoured  commodities, 
and  grow  unwilling  to  fetter  the  newer  descriptions  of  property 
wdth  the  technical  trammels  which  characterised  the  infancy  of  law. 
Hence  arises  a  disposition  to  keep  these  last  on  a  lower  grade  in  the 
arrangements  of  Jurisprudence,  and  to  permit  their  transfer  by 
simpler  processes  than  those  which,  in  archaic  conveyances,  serve 
as  stumbling-blocks  to  good  faith  and  stepping-stones  to  fraud. 
We  are  perhaps  in  some  danger  of  under-rating  the  inconveniences 
of  the  ancient  modes  of  transfer.  Our  instruments  of  conveyance 
are  written,  so  that  their  language,  well  pondered  by  the  profes- 
sional draftsman,  is  rarely  defective  in  accuracy.  But  an  ancient 
conveyance  was  not  written,  but  acted.  Gestures  and  words 
took  the  place  of  WTitten  technical  phraseology,  and  any  formula 
mispronounced,  or  sjoiibolical  act  omitted,  would  have  vitiated 
the  proceeding  as  fatally  as  a  material  mistake  in  stating  the  uses 
or  setting  out  the  remainders  would,  two  hundred  years  ago,  have 
vitiated  an  English  deed.  Indeed,  the  mischiefs  of  the  archaic 
ceremonial  are  even  thus  only  half  stated.  So  long  as  elaborate 
conveyances,  written  or  acted,  are  required  for  the  alienation 
of  land  alone,  the  chances  of  mistake  are  not  considerable  in  the 
transfer  of  a  description  of  property  which  is  seldom  got  rid  of 
with  much  precipitation.     But  the  higher  class  of  property  in  the 


I 


Chap.  XXI,  §  3.]  THE    LAW   OF    PROPERTY  3S9 

ancient  world  comprised  not  only  land  but  several  of  the  common- 
est and  several  of  the  most  valuable  movables.  ^\Tien  once  the 
wheels  of  society  had  begun  to  move  quickly,  there  must  have  been 
immense  inconvenience  in  demanding  a  highly  intricate  form  of 
transfer  for  a  horse  or  an  ox,  or  for  the  most  costly  chattel  of  the  old 
world  —  the  Slave.  Such  commodities  must  have  been  constantly 
and  even  ordinarily  conveyed  with  incomplete  forms,  and  held, 
therefore,  under  imperfect  titles. 

The  Res  ]\Iancipi  of  old  Roman  law  were,  land,  —  in  historical 
times,  land  on  Italian  soil,  —  slaves  and  beasts  of  burden,  such  as 
horses  and  oxen.  It  is  impossible  to  doubt  that  the  objects 
which  make  up  the  class  are  the  instruments  of  agricultural  labour, 
the  commodities  of  first  consequence  to  a  primitive  people.  Such 
commodities  were  at  first,  I  imagine,  called  emphatically  Things 
or  Property,  and  the  mode  of  conveyance  by  which  they  were 
transferred  was  called  a  INIancipium  or  ^Mancipation  ;  but  it  was 
not  probably  till  much  later  that  they  received  the  distinctive 
appellation  of  Res  ^Mancipi,  "  Things  which  require  a  ]Mancipa- 
tion."  By  their  side  there  may  have  existed  or  grown  up  a  class 
of  objects,  for  which  it  was  not  worth  while  to  insist  upon  the  full 
ceremony  of  ^Mancipation.  It  would  be  enough  if,  in  transferring 
these  last  from  owner  to  owner,  a  part  only  of  the  ordinary  formali- 
ties were  proceeded  with,  namely,  that  actual  delivery,  physical 
transfer,  or  tradition,  which  is  the  most  obvious  index  of  a  change  of 
proprietorship.  Such  commodities  were  the  Res  Xec  ]Mancipi  of 
the  ancient  jurisprudence,  "things  which  did  not  require  a  ]Manci- 
pation,"  little  prized  probably  at  first,  and  not  often  passed  from 
one  group  of  proprietors  to  another.  AVhile,  however,  the  list 
of  the  Res  ^^!bc  Mancipi  was  irrevocably  closed,  that  of  the 
Res  Xec  Mancipi  admitted  of  indefinite  expansion ;  and  hence 
every  fresh  conquest  of  man  over  material  nature  added  an 
item  to  the  Res  Nee  Mancipi,  or  effected  an  improvement  in  those 
already  recognised.  Insensibly,  therefore,  they  mounted  to  an 
equality  with  the  Res  ^Mancipi,  and  the  impression  of  an  intrinsic 
inferiority  being  thus  dissipated,  men  began  to  observe  the  mani- 
fold advantages  of  the  simple  formality  which  accompanied  their 
transfer  over  the  more  intricate  and  more  venerable  ceremonial. 
Two  of  the  agents  of  legal  amelioration,  Fictions  and  Equity,  were 
assiduously  employed  by  the  Roman  lawyers  to  give  the  practical 
effects  of  a  ^lancipation  to  a  Tradition ;  and,  though  Roman 
legislators  long  shrank  from  enacting  that  the  right  of  property  in  a 
Res  Mancipi  should  be  immediately  transferred  by  bare  delivery 


390  THINGS  [Part  III. 

of  the  article,  yet  even  this  step  was  at  last  ventured  upon  by 
Justinian,  in  whose  jurisprudence  the  difference  between  Res 
Mancipi  and  Res  Nee  INIancipi  disappears,  and  Tradition  or 
Delivery  becomes  the  one  great  conveyance  known  to  the  law. 
The  marked  preference  w^hich  the  Roman  lawyers  very  early  gave 
to  Tradition  caused  them  to  assign  it  a  place  in  their  theory  which 
has  helped  to  blind  their  modern  disciples  to  its  true  history. 
It  was  classed  among  the  "natural"  modes  of  acquisition,  both 
because  it  was  generally  practised  among  the  Italian  tribes,  and 
because  it  was  a  process  which  attained  its  object  by  the  simplest 
mechanism.  If  the  expressions  of  the  jurisconsults  be  pressed, 
they  undoubtedly  imply  that  Tradition,  which  belongs  to  the  Law 
Natural,  is  more  ancient  than  Mancipation,  which  is  an  institution 
of  Civil  Society ;  and  this,  I  need  not  say,  is  the  exact  reverse 
of  the  truth. 

The  distinction  between  Res  Mancipi  and  Res  Nee  Mancipi  is 
the  type  of  a  class  of  distinctions  to  which  civilisation  is  much 
indebted,  distinctions  wdiich  run  through  the  whole  mass  of  commod- 
ities, placing  a  few  of  them  in  a  class  by  themselves,  and  relegat- 
ing the  others  to  a  lower  category.  The  inferior  kinds  of  property 
are  first,  from  disdain  and  disregard,  released  from  the  perplexed 
ceremonies  in  which  primitive  law  delights,  and  then  afterwards 
in  another  state  of  intellectual  progress,  the  simple  methods  of 
transfer  and  recovery  which  have  been  allowed  to  come  into  use 
serve  as  a  model  which  condemns  by  its  convenience  and  simplicity 
the  cumbrous  solemnities  inherited  from  ancient  days.  But  in 
some  societies,  the  trammels  in  which  Property  is  tied  up  are  much 
too  complicated  and  stringent  to  be  relaxed  in  so  easy  a  manner. 
Whenever  male  children  have  been  born  to  a  Hindoo,  the  law  of 
India,  as  I  have  stated,  gives  them  all  an  interest  in  his  property, 
and  makes  their  consent  a  necessary  condition  of  its  alienation. 
In  the  same  spirit,  the  general  usage  of  the  old  Germanic  peoples 
—  it  is  remarkable  that  the  Anglo-Saxon  customs  seem  to  have 
been  an  exception  —  forbade  alienations  without  the  consent  of 
the  male  children ;  and  the  primitive  law  of  the  Sclavonians  even 
prohibited  them  altogether.  It  is  evident  that  such  impediments 
as  these  cannot  be  overcome  by  a  distinction  between  kinds  of 
property,  inasmuch  as  the  difficulty  extends  to  commodities  of  all 
sorts ;  and  accordingly,  Ancient  Law,  when  once  launched  on  a 
course  of  improvement,  encounters  them  with  a  distinction  of 
another  character,  a  distinction  classifying  property,  not  according 
to  its  nature  but  according  to  its  origin.     In  India,  where  there 


Chap.  XXI,  §  3.]  THE    LAW   OF   PROPERTY  391 

are  traces  of  both  systems  of  classification,  the  one  which  we  are 
considering  is  exemplified  in  the  difference  which  Hindoo  law 
establishes  between  Inheritances  and  Acquisitions.  The  inherited 
property  of  the  father  is  shared  by  the  children  as  soon  as  they  are 
born ;  but  according  to  the  custom  of  most  provinces,  the  acquisi- 
tions made  by  him  during  his  lifetime  are  wholly  his  own,  and  can 
be  transferred  by  him  at  pleasure.  A  similar  distinction  was  not 
unknown  to  Roman  Law,  in  which  the  earliest  innovation  on  the 
Parental  Powers  took  the  form  of  a  permission  given  to  the  son 
to  keep  for  himself  whatever  he  might  have  acquired  in  military 
service.  But  the  most  extensive  use  ever  made  of  this  mode  of 
classification  appears  to  have  been  among  the  Germans.  I  have 
repeatedly  stated  that  the  allod,  though  not  inalienable,  was  com- 
monly transferable  with  the  greatest  difficulty ;  and  moreover,  it 
descended  exclusively  to  the  agnatic  kindred.  Hence  an  extraor- 
dinary variety  of  distinctions  came  to  be  recognised,  all  intended 
to  diminish  the  inconveniences  inseparable  from  allodial  property. 
The  icehrgeld,  for  example,  or  composition  for  the  homicide  of  a 
relative,  which  occupies  so  large  a  space  in  German  jurisprudence, 
formed  no  part  of  the  family  domain,  and  descended  according  to 
rules  of  succession  altogether  different.  Similarly,  the  reipus,  or 
fine  leviable  on  the  re-marriage  of  a  widow,  did  not  enter  into  the 
allod  of  the  person  to  whom  it  was  paid,  and  followed  a  line  of  devo- 
lution in  which  the  privileges  of  the  agnates  were  neglected.  The 
law,  too,  as  among  the  Hindoos,  distinguished  the  Acquisitions  of 
the  chief  of  the  household  from  his  Inherited  property,  and  per- 
mitted him  to  deal  with  them  under  much  more  liberal  conditions. 
Classifications  of  the  other  sort  were  also  admitted,  anci  the  familiar 
distinction  drawn  between  land  and  movables ;  but  movable 
property  was  divided  into  several  subordinate  categories,  to  each 
of  which  different  rules  applied.  This  exuberance  of  classification, 
which  may  strike  us  as  strange  in  so  rude  a  people  as  the  German 
conquerors  of  the  Empire,  is  doubtless  to  be  explained  by  the 
presence  in  their  systems  of  a  considerable  element  of  Roman 
Law,  absorbed  by  them  during  their  long  sojourn  on  the  confines 
of  the  Roman  dominion.  It  is  not  difficult  to  trace  a  great  number 
of  the  rules  governing  the  transfer  and  devolution  of  the  commod- 
ities which  lay  outside  the  allod,  to  their  source  in  Roman  jurispru- 
dence, from  which  they  were  probably  borrowed  at  widely  distant 
epochs,  and  in  fragmentary  importations. 


392  THINGS  [Part  III. 

Section  4 
THE  VILLAGE  COMMUNITY  AS  A  PRIMITIVE  INSTITUTION  ^ 

In  order  to  understand  properly  what  the  village  communities 
of  Britain  really  represent  in  the  history  of  our  race,  it  is  neces- 
sary we  should  start  with  a  clear  view  of  what  a  village  community 
is.  The  term  has  become  popular,  and  has  lost  somewhat  of  its 
more  precise  historical  and  archaeological  meaning.  The  two 
sources  of  its  popularity  in  England  are  the  writings  of  Sir  Henry 
Maine  and  Mr.  Frederic  Seebohm.  Sir  Henry  Maine  some  years 
since  drew  attention  to  the  traces  of  the  village  community  in 
English  local  institutions  and  customs,  basing  his  proofs  upon 
the  parallel  which  exists  between  some  English  and  Indian  phe- 
nomena. ]Mr.  Seebohm,  more  recently,  has  chronologically  traced 
back  the  existence  of  certain  economical  phenomena  in  English 
villages  to  a  period  which,  speaking  roughly,  may  be  identified 
with  the  Roman  occupation  of  this  island,  and  he  seeks,  in  the 
events  of  this  period,  the  origin  of  the  village  community  in  its 
English  form.  And  it  happens  that,  in  the  contrast  between  the 
village  community  as  represented  by  each  of  these  great  scholars, 
the  institution  which  the  term  connotes  has  become  somewhat 
indefinite  and  obscure.  A  group  of  men  cultivating  their  lands 
in  common  and  having  rights  and  duties  in  common  is  the  typical 
form ;  but  students  are  divided  as  to  whether  this  institution  is 
of  historical  origin  and  growth,  or  of  primitive  origin  and  growth. 

It  is  just  this  question  of  origin  which  is  of  the  first  importance, 
and  if,  as  I  suggest,  the  village  community  can  be  proved  to  be 
a  primitive  institution,  this  must  have  a  most  important  bearing 
upon  its  history  in  Britain.  It  means  that  the  village  community 
originated  at  a  stage  of  social  development  long  prior  to  the  polit- 
ical stage,  and  that  hence  its  appearance  among  the  local  institu- 
tions of  Britain  is  of  the  nature  of  a  sur\ival  from  prehistoric 
times.  If  this  view  is  once  fully  understood  and  accepted,  much 
of  the  difficulty  arising  from  a  conflict  in  terminology  will  ^■anish, 
because  the  whole  method  of  future  research  must  be  coloured  by 
the  evidence  as  to  origin.  If  the  village  community  is  of  primitive 
origin,  and  its  later  existence  a  survival,  we  should  be  able  to  note 
its  opposition  to  the  political  phenomena  of  civilized  history.  If  it 
arises  out  of  the  advanced  political  organization  of  the  Roman 

1  [By  George  Laurence  Gomme,  "The  Village  Community,"  (Ch.  I), 
London.  The  Walter  Scott  Publishing  Company,  Limited,  1890 ;  re- 
published by  permission.] 


Chap.  XXI,  §  4.]  THE    LAW   OF   PROPERTY  393 

Empire  we  should  be  able  to  note  that  it  has  developed  into  and 
forms  part  of  the  political  and  economical  phenomena  of  civilized 
history,  which,  indeed,  under  this  hypothesis  it  must  have  helped 
to  form  ;  for,  with  all  the  spur  of  Roman  civilization,  it  must  have 
so  influenced  English  institutions  as  to  make  English  institutions 
themselves  but  a  continuation  of  Roman  institutions.  Thus  the 
evidence  as  to  origin  is  of  great  importance ;  and  before  we  can 
properly  examine  the  types  in  Britain,  or  ascertain  what  they 
really  represent  in  English  history,  we  must  know  something  of 
the  more  primitive  types,  which  alone  can  tell  us  anything  of 
origin. 

If  the  village  community  is  a  primitive  institution,  it  must  be 
granted  that  from  the  present  position  of  the  subject  in  the  hands 
of  those  students  who  have  dealt  with  it,  there  are  some  consider- 
able obstacles  to  be  got  over  in  taking  up  this  new  position.  In 
the  first  place,  we  must  sooner  or  later  come  to  the  question  of 
race  in  the  formation  of  such  an  institution,  because  in  Britain 
alone  we  have  certain  evidence  of  an  Iberic,  a  Celtic,  and  a  Teu- 
tonic population,  all  of  which  lived  in  communities,  and  all  of 
which  have  left  their  mark  upon  later  British  history.  With  the 
researches  of  Professor  Boyd  Dawkins  and  ]Mr.  Elton  before  us, 
it  is  idle  to  attempt  an  investigation  into  any  section  of  English 
institutions  without  taking  count  of  the  ethnic  influences.  Sec- 
ondly, we  have  to  disentangle  ourselves  from  the  notion  that  the 
form  in  which  the  village  community  is  found  in  Britain  could 
only  have  arisen  from  the  influences  of  civilizing  powers,  a  position 
forced  upon  us  by  ]\Ir.  Seebohm ;  we  have  to  get  rid  of  the  idea 
that  as  an  institution  it  is  a  special  heritage  of  the  Aryan  race, 
a  position  forced  upon  us  by  Sir  Henry  Maine.  And,  finally,  we 
shall  have  to  establish  if  possible  that  it  is  exactly  similar  in  its 
wide  extension  to  other  ascertained  phases  of  human  society,  and 
must,  therefore,  be  reckoned  with  as  one  of  the  phases  through 
which  practically  all  mankind  who  have  reached  a  certain  stage  of 
development  must  have  passed.  Thus  it  will  be  seen  that  in 
attempting  to  investigate  the  village  communities  of  Britain  our 
study  is,  in  fact,  a  chapter  in  the  science  of  comparative  custom, 
not  in  the  chronological  history  of  a  nation.  What  we  shall  be 
doing  is  to  trace  out  the  history  of  an  institution,  which  may  be 
said  to  be  almost  universal,  during  its  existence  in  a  special  coun- 
try, namely,  Britain,  where  it  has  been  subject  to  special  influences ; 
it  is  not  the*history  of  a  British  institution,  but  the  history  of  a 
human  institution  in  Britain. 


394  THINGS  [Part  III. 

It  seems  remarkable  that  the  early  history  of  institutions  in 
this  country,  and  in  the  Western  world  generally,  should  have 
been  so  infrequently  studied  side  by  side  with  the  monumental 
and  other  evidence  of  the  existence  of  different  ethnic  stocks. 
Cave  dwellers,  hill  men,  lake  dwellers,  dolmen  builders,  have  all 
left  very  important  proofs  of  their  lengthened  occupation  of  this 
country,  but  their  influences  are  never  reckoned  with  when 
anything  but  monumental  archaeology  is  being  considered.  Mr. 
Elton  was  the  first  to  point  out  that  certain  rude  customs  among 
the  peasantry  could  best  be  accounted  for  by  the  theory  of  their 
survival  from  non-Aryan  tribes ;  but,  except  to  explain  the  prev- 
alence of  junior  right  in  a  certain  well-defined  tract  of  country, 
he  does  not  suggest  that  this  survival  may  possibly  direct  our 
attention  to  these  race  influences  for  an  explanation  of  much  that 
is  obscure  in  our  remarkably  diversified  local  institutions.  In  the 
meantime  Sir  Henry  INIaine  had  put  a  more  express  limit  upon 
the  value  of  race  influences  in  comparative  jurisprudence.  The 
tribes  of  men  with  which  the  student  of  jurisprudence  is  concerned, 
he  tells  us,  are  exclusively  those  belonging  to  the  races  now  uni- 
versally classed,  on  the  ground  of  linguistic  affinities,  as  Aryan 
and  Semitic :  besides  these  he  has  at  most  to  take  into  account 
that  portion  of  the  outlying  mass  of  mankind  which  has  lately 
been  called  Uralian,  the  Turks,  Hungarians,  and  Finns. ^ 

Now  an  appeal  to  comparative  custom  to  unlock  some  of  the 
hidden  secrets  of  our  own  early  life  means  that  we  must  study  not 
only  the  prehistoric  monuments  and  the  barbaric  customs  of  Aryan 
nations,  but  the  very  rude  forms  of  life  still  existing ;  for,  as  Mr. 
jNIcLennan  has  well  observed,  the  preface  of  general  history  must 
be  compiled  from  the  materials  presented  by  barbarism.  Rude 
stone  monuments  tell  us  something  of  the  rude  people  who  built 
them  ;  philology  tells  us  something  of  the  archaic  social  conditions 
of  Aryan  man ;  but  the  knowledge  gained  from  these  two  sources 
of  scientific  observation,  however  true  as  to  general  outline,  is 
not  rich  in  detail.  For  this  we  can  only  go  to  comparative  custom ; 
and  it  is  in  detail  that  an  institution  like  the  village  community 
must  be  examined. 

Comparative  custom,  not  seeking  for  evidences  of  early  man 
merely  in  the  written  records  of  ancient  nations,  does  not  define 
as  old  everything  that  is  chronologically  early.  It  has  ascer- 
tained that  man  is  an  unchanging  being  under  certain  conditions 
which  have  been  present  over  a  large  part  of  the  globe ;  it  there- 
^  "Early  History  of  Institutions,"  p.  65. 


< 


Chap.  XXI,  §  4.]        THE  LAW  OF  PROPERTY  395 

fore  seeks  for  evidence  of  early  man  from  the  unchanged  represent- 
atives still  living,  and  it  defines  as  old  that  which  has  not  advanced 
and  become  progressive.  If  we  can  find  rude  types  of  the  village 
community  in  India  and  in  Europe,  we  may  conclude  that  these 
rude  types  are  probably  as  old  as  the  Indo-European  race ;  and  if 
we  can  go  one  step  further  and  find  rude  types  of  the  village 
community  in  still  more  backward  races  of  the  world,  we  may  con- 
clude that  these  rude  types  show  us  what  early  man  was  capable 
of  doing  in  the  matter  of  social  and  economical  organization 
before  there  was  any  chance  of  his  contact  with  any  civilized  or 
civilizing  system. 

This  seems  to  be  the  necessary  starting-point  in  our  researches. 
We  must  first  note  some  of  the  details  available  from  this  source 
of  information,  in  order  to  set  forth  as  clearly  as  may  be  that  the 
village  community  belongs  essentially  to  the  primitive  and  archaic 
stage  of  social  development ;  and  we  can  then  see  if  there  are  any 
traces  of  continuity  between  the  rudest  forms  of  this  institution 
and  the  forms  found  to  exist  in  civilized  Britain. 

For  this  purpose  I  shall  first  of  all  turn  to  some  examples  of 
the  village  community  among  savage  races,  and  I  shall  choose 
the  Fijians,  the  Basutos,  and  the  Dyaks.  Low  down  in  the  scale 
of  humanity,  it  will  be  seen  that  these  people  have  yet  developed 
a  system  of  village  economy  remarkably  close  to  that  surviving  in 
India  and  Europe.  The  effect  of  such  evidence  is  twofold.  It 
shows  that  the  mental  efforts  which  called  forth  such  a  system  did 
not  serve  to  make  the  race  other  than  savages ;  and  it  suggests 
that  in  these  savage  institutions  we  have  types  of  the  early  stages 
of  our  own  history  when  the  village  community  was  first  formed. 
It  may  seem  a  far-off  cry  from  the  Fijians  of  to-day  to  the  inhabit- 
ants of  our  own  island  in  prehistoric  days ;  but  while  we  know 
from  the  evidence  of  monumental  remains  that  man  in  his  most 
primitive  condition  lived  in  these  islands  long  enough  to  impress 
his  barbarism  upon  the  successive  waves  of  civilization,  while  we 
can  trace  evidences  of  that  stage  of  barbarism  in  a  race  of  people 
which  must  at  least  have  extended  from  Central  Asia  to  Britain, 
and  while  we  know  that  modern  savagedom  retains  habits  and 
beliefs  which  best  explain  the  silent  monuments  of  ancient  savage- 
dom,^ it  is  abundantly  clear  that  to  understand  the  survivals  of 

*  A  very  good  example  of  this  is  to  be  found  in  Dr.  E.  B.  Tylor's  com- 
parison of  tlie  Digging  Sticks  as  the  earliest  agricultural  implements,  used 
both  among  the  North  American  Indians  and  in  Sweden,  and  the  system 
of  shifting-brand  tillage  among  the  Basutos  and  in  Sweden.  See  "  Con- 
temporary Review,"  vol.  xxii,  p.  04. 


396  THINGS  [Part  III. 

early  institutions  in  civilized  countries,  we  must  examine  existing 
types  of  these  self-same  institutions  in  the  rudest  form  in  vrhich 
they  are  to  be  found,  x^nd  if  authority  is  needed  for  such  a  course 
as  I  propose  to  take,  I  am  content  to  stand  by  the  great  name  of 
Dr.  E.  B.  Tylor,  who,  in  one  of  his  most  pregnant  essays  on  prim- 
itive society,  connects  the  various  steps  in  the  history  of  legal 
ownership  of  land  by  evidence  v\'hich  commences  with  the  low 
savages  of  Brazil,  and  leads  up  to  the  old  Scandinavian  and 
Teutonic  communities.  "The  case  is  indeed  plain,"  says  Mr. 
Tylor,  "  showing  us  that  while  we  have  a  land  law  modified  from 
that  of  our  barbaric  ancestors,  their  law  again  had  its  origin  in 
the  simplest  form  of  tenure  still  to  be  found  among  savages  who 
have  but  just  come  to  the  agricultural  stage."  ^ 

But  there  is  something  more  to  be  said  for  such  a  comparison. 
I  have  suggested  that  an  examination  of  the  village  community 
among  the  most  backward  races  will  go  far  to  estab- 
lish the  widespread  extension  of  this  institution  as  a  phase  of 
development  through  which  mankind  must  have  passed  to  reach 
civilization.  And  let  me  note  how  necessary  a  complement 
this  is  to  those  other  researches  into  the  early  history  of  man  which 
are  identified  with  the  names  of  Tylor,  McLennan,  INIorgan,  and 
Lubbock.  These  scholars  have  established  landmarks  in  the  social, 
religious,  and  mental  development  of  man  to  which  every  day 
brings  further  research,  either  confirming  or  varying  the  conclu- 
sions arrived  at.  But  nothing,  or  very  little,  has  been  attempted 
to  set  out  the  landmarks  of  primitive  economics.  The  totem 
tribes,  with  female  kinship  and  exogamous  marriages,  in  their 
progress  towards  male  kinship  and  full  tribal  society,  built  their 
stone  circles  and  their  burial  mounds,  their  rude  habitations,  their 
extensive  defences  against  hostile  tribes,  and  we  are  beginning 
more  and  more  to  trace  out  the  connection  between  the  monu- 
ments and  their  builders.  But  there  also  existed  throughout  all 
this  period  of  early  culture  a  system  c^  economics  which  governed 
or  marked  the  life  of  the  tribes.  Primitive  economical  conditions 
are  just  as  important  in  tracing  out  the  early  history  of  man  and 
the  bearings  of  that  early  history  upon  all  succeeding  periods  as 
other  primitive  conditions.  They  may  be  studied  by  the  same 
methods,  illustrated  by  the  same  types  of  modern  barbarism,  and 
traced  along  the  same  lines  of  development,  which  have  been 
adopted  in  the  corresponding  studies  of  early  man ;  and  thus, 
when  from  the  evidence  of  contemporary  savagedom  we  for  our 
1  "Contemporary  Review,"  vol.  XXII,  p.  66. 


Chap.  XXI,  §  4.]  THE   L.^W   OF   PROPERTY  397 

present  purposes  come  to  select  one  or  two  instances  to  guide  us 
to  the  earliest  stages  of  primitive  economics,  we  may  allow  this 
evidence  to  stand  as  typical  of  what  further  research  would 
bring  forth  upon  the  question  of  the  widespread  existence  of  the 
village  community. 

Proof  of  this  widespread  existence  of  a  definite  primitive  eco- 
nomical system  cannot  now  be  undertaken,  because  it  is  a  subject 
by  itself,  and  needs  immense  research  into  some  of  the  b\'ways  of 
the  literature  of  travellers.  But  I  may  indicate  some  of  the  lines 
which  such  a  study  would  proceed  upon,  and  where  such  lines 
converge  upon  the  examples  I  shall  more  particularly  examine. 
It  appears  to  me  that  the  true  way  to  study  primitive  economics 
is  to  commence  with  the  structural  details  of  primitive  residences. 

In  prehistoric  archaeology  a  very  considerable  section  is  occu- 
pied by  the  remains  —  sometimes  structural,  sometimes  consisting 
of  mere  deposits  of  domestic  utensils  —  of  early  dwelling  places. 
In  savage  archaeology  w^e  meet  with  examples  of  early  dwelling 
places  peopled  still  by  those  who  built  or  adapted  them.  If 
there  is  an  overlapping  of  these  two  departments  of  archaeology 
at  any  given  point,  they  must  illustrate  and  elucidate  each  other, 
because  they  both  deal  with  the  same  phenomenon  —  the  swarm- 
ing of  human  groups  into  their  shells  during  a  vast  period  of 
time.  It  is  important,  therefore,  to  ascertain,  if  possible,  whether 
such  an  overlapping  does  take  place,  and  if  so,  at  what  point. 

But  to  accomplish  this  task  with  anything  like  success  it  would 
be  necessary  to  gather  together  the  evidence,  now  almost  hope- 
lessly scattered,  as  to  the  dwelling  places  and  home  economy 
of  the  savage  races.  Only  one  authority,  so  far  as  I  know,  has 
paid  close  attention  to  this  subject,  namely,  the  late  ]\Ir.  Lewis 
Morgan,  but  his  book  relates  entirely  to  the  evidence  derived  from 
the  American  Indians.  His  researches,  however,  into  this  branch 
of  the  human  race  are  so  true  that  it  is  not  unimportant  to  note 
that  they  are  confirmed  in  ail  essential  particulars  when  we  extend 
the  area  of  research  to  other  uncivilized  peoples.  For  the  rest, 
it  would  be  necessary  to  pick  our  way  among  the  recorded  observ- 
ances of  travellers  who  have  seldom  noted  the  essentials  of  savage 
economics. 

Mr.  Tylor  has  remarked  that  "thinking  of  the  nests  of  birds, 

the  dams  of  beavers,  the  tree  platforms  of  apes,  it  can  scarcely  be 

supposed  that  man  at  any  time  was  unable  to  build  himself  a 

shelter."  ^     That  he  does  not  do  so  is  due  to  causes  which  are 

^  "Anthropology."  p.  229. 


398  THINGS  [Part  III. 

inseparably  connected,  though  how  we  cannot  exactly  say,  with 
the  form  of  the  society  in  which  he  is  living.  In  such  types  of 
society  which  may  perhaps  best  be  identified  with  the  primitive 
human  horde  to  which  INIr.  McLennan  worked  back,^  there  is 
no  room  for  artificially-built  dwellings.  Such,  for  instance,  are 
the  wild  Bushmen  of  South  Africa.  "A  cave  with  its  opening 
protected  by  a  few  branches,  or  the  centre  of  a  small  circle  of  thorn 
trees,  round  which  skins  of  wild  animals  were  stretched,  was  the 
best  dwelling  place  that  they  aspired  to  possess  ;  if  neither  of  these 
were  within  their  reach  they  scooped  out  a  hole  in  the  ground, 
placed  a  few  sticks  or  stones  round  it,  and  spread  a  skin  above 
to  serve  as  a  roof,  or  sometimes  nothing  more  than  a  reed  mat 
on  the  side  from  which  the  wind  was  blowing  :  a  little  grass  at  the 
bottom  of  the  hole  formed  a  bed,  and  though  it  was  not  much 
larger  than  the  nest  of  an  ostrich,  a  whole  family  would  manage 
to  lie  down  in  it."  ^  This  is  the  indiscriminate  squatting  of  a 
human  horde,  the  atoms  of  which  are  kept  together  by  forces  which 
operate  from  outside,  instead  of  by  forces  originating  from  the 
recognition  and  use  of  the  ties  of  blood  relationship,  as  among 
more  advanced  peoples.  The  use  of  constructed  dwellings  would 
not  fit  in  with  the  mental  attitude  or  wdth  the  unregulated  indi- 
vidualism of  this  stage  of  human  life,  and  accordingly  it  seems 
possible  to  date  the  rise  of  a  permanent  form  of  dwelling  from  the 
time  w^hen  blood  kinship  began  to  be  utilized  in  the  building-up  of 
society.  Much  profitless  discussion  has  taken  place  upon  Mr. 
McLennan's  theory  as  to  a  period  in  human  history  w^hen  blood 
relationship  was  not  recognized.  That  blood  relationship  has 
always  de  facto  existed  of  course  needs  no  proof  ;  that  it  has  always 
to  some  extent  been  one  of  the  means  of  calling  forth  the  springs 
of  natural  affection  in  the  human  race,  may  be  accepted  also  as  a 
general  fact ;  that  it  has  not  always  been  utilized  as  the  foundation 
of  political  societies,  that  it  has  not  always  been  made  the  cement 
which  bound  large  groups  of  men  arfd  women  together,  are  the 
points  to  which  jNIr.  McLennan  has  directed  attention. 

The  stage  when  permanent  forms  of  artificial  dwellings  were 
constructed  seems  to  mark  a  definite  point  in  the  line  of  devel- 
opment ;  and  we  may  proceed  from  it  to  fix  upon  such  races 
as  the  Fijians,  Basutos,  and  Dyaks  as  sufficiently  indicative  of 
the  rudest  forms  of  the  village  community.  When  we  have 
examined  the  details  presented  by  these  examples  we  shall  be 

'  Cf.  my  paper  in  "  Journ.  Anthrop.  Inst.,"  vol.  XVII,  pp.  118-133. 
^  ThcaVs  "Compendium  of  South  African  History,"  p.  55. 


Chap.  XXI,  §  4.]  THE    LAW   OF    PROPERTY  399 

able  to  affirm  that  the  formation  of  the  village  community  as  a 
human  institution  arose  in  the  period  of  primitive  economics, 
and  that  a  reasonable  conclusion  may  be  drawn  from  this,  namely, 
that  its  existence  among  economical  conditions  which  were  not 
primitive  is  not  due  to  such  conditions,  but  to  a  resistance  which 
all  primitive  institutions  actively  exert  when  they  are  brought 
into  antagonism  with  a  system  which  must  in  the  end  overthrow 
them. 

(a)  Villages  in  Fiji  are  sometimes  inhabited  by  land-owning 
tribes,  and  sometimes  by  people  who  have  no  land  of  their  own. 
Our  business  is  with  the  former  of  these  two  classes,  but  it  is 
worth  while  pointing  out  that  the  existence  of  this  distinction 
shows  some  advance  in  social  development.  The  village  in- 
habited by  landowners  is  surrounded  by  moat  and  mound  and 
war-fence.  It  is  divided  into  two  sections  separated  by  a  ditch, 
which  sections  are  subdivided  into  quarters.  Apparently  in 
some  cases  the  sections  do  not  appear,  but  the  quarters  gen- 
erally do. 

The  houses  are  thus  arranged.  Each  family  group  has  its  own 
town  lot.  It  is  subdivided  into  smaller  lots  until  each  family  or 
household  has  its  own.  This  is  the  precinct,  and  may  be  sur- 
rounded by  a  fence  at  the  will  of  its  owners.  Each  family  lot 
must  be  built  upon  so  as  to  leave  a  pathway  between  it  and  the 
adjoining  lot.     It  is  sacred  against  all  encroachments  of  any  kind. 

Each  of  the  quarters  belongs  to  a  section  of  the  community 
called  a  mataqali,  a  word  which  means  literally  a  number  of  men 
who  are  twisted  together,  i.e.,  of  common  descent.  It  is  com- 
posed of  the  descendants  of  a  band  of  brothers,  from  each  of 
which  is  descended  a  minor  division  called  a  yavusa,  and  each 
yovusa  may  be  again  subdivided  into  a  number  of  vuvale,  con- 
sisting of  brothers  with  their  families  who  inhabit  either  the 
same  house  or  adjoining  houses.  The  people  of  a  village  are 
theoretically  of  common  descent,  though  they  are  not  actually  so. 

The  village  has  its  own  lands  distinct  from  those  of  other 
villages.  They  are  of  three  kinds:  (1)  the  Yavu  or  town  lot; 
(2)  The  Qele,  or  arable  land ;  (3)  the  Veikau,  or  forest.  The 
town  lot,  as  we  have  noted,  is  that  which  is  occupied  by  the 
house  and  the  garden,  and  there  seems  to  be  a  close  connection 
between  this  town  lot  and  the  arable  land,  the  ownership  of  one 
appearing  to  go  far  towards  establishing  that  of  the  other.  The 
arable  land  lies  beyond  the  village.  In  some  places  it  is  divided 
into  lots,  and  subdivided  into  smaller  lots,  each  having  its  owner 


400  THINGS  [Part  III. 

or  owners.  Elsewhere  it  is  not  so  divided,  and  all  the  joint 
owners  appear  to  use  any  piece  that  may  be  convenient.  Beyond 
the  arable  is  the  forest.  It  is  not  subdivided  like  the  arable,  but 
is  common  to  all  the  mataqali  of  the  village.  Its  members  have 
the  joint  right  of  felling  timber  for  building  and  other  purposes, 
but  one  community  may  not  trespass  upon  the  forest  of  another.^ 

(6)  The  villages  of  the  Dykas  of  Borneo  are  mostly  built  along 
the  banks  of  the  rivers,  though  here  and  there  are  solitary  houses 
hidden  from  view  among  the  forests  at  a  short  distance  from  a 
stream  or  creek.  The  houses  are  from  80  to  100  feet  in  length, 
20  to  30  feet  in  width,  and  with  walls  about  10  feet  high,  the  ridge 
of  the  roof  rising  another  5  or  6  feet.  The  house  proper  has  only 
one  floor,  raised  about  15  to  20  feet  from  the  ground  on  posts  of 
hard  timber.  Under  the  actual  habitation  is  a  raised  floor  or 
platform  of  boards  and  bamboo  poles,  about  4  or  6  feet  from  the 
level  of  the  ground,  and  open  on  all  sides.  Here  the  women  pound 
their  rice,  the  men  hold  bitcharas  or  councils,  the  infants  are 
nursed,  and  the  rising  generation  play  or  practise  war-dances. 
The  ground  under  and  around  these  platforms  is  occupied  by  the 
pigs,  cats,  dogs,  and  fowls.  The  floor  of  the  house  proper  is 
reached  by  a  ladder  consisting  of  a  block  of  timber  or  thick  board, 
in  which  deep  notches  are  cut  to  form  steps.  The  floor  is  composed 
of  bamboo  and  the  walls  of  mixed  bamboo  and  timber  boards. 
The  roof  is  covered  with  wood  or  with  the  split  leaves  of  the 
nipa  palm.  Internally  the  house  is  divided  longitudinally  by  a 
bamboo  partition.  One  of  the  long  compartments  so  formed 
serves  as  a  sleeping  place  for  the  unmarried  youths  and  men, 
and  as  a  general  living  room  for  all  the  occupants ;  the  other 
compartment  is  subdivided  into  a  series  of  smaller  rooms  for 
the  married  members  of  the  family  and  the  women. 

Every  Dyak  has  his  rice-field,  on  which  he  grows  sufficient 
rice  for  his  own  consumption.  He  selects  a  piece  of  forest  land 
and  begins,  with  the  assistance  of  his  family,  to  clear  the  ground. 
The  large  trees  are  cut  down  and  the  undergrowth  fired,  the 
ashes  of  which  act  as  manure.  Having  sown  their  rice,  they  build 
small  huts  in  the  rice-fields,  remaining  there  till  the  miniature 
plants  are  transplanted  out  into  the  newly-cleared  field,  on  which 
the  women  have  all  the  time  been  busily  engaged. 

Near  the  houses  are  plantations  of  maize,  bananas,  pisangs, 
a  sort  of  turnip,  sugar-cane,  penang,  and  a  few  cocoa-nut  palms. 

Their  agricultural  implements  are  the  mandau  and  a  peculiar 
1  "  Journ.  Anthrop.  Inst.,"  vol.  X,  p.  332  et  seq. 


Chap.  XXI,  §  4.]  THE    LAW   OF    PROPERTY  401 

axe  or  adze,  the  iron  of  which  is  fastened  with  cords  made  from 
the  sinews  of  deer  plaited  in  chequer  fashion  to  a  shaft  made  of 
a  piece  of  hard  wood.  This  again  is  stuck  into  a  large  handle, 
to  which  it  is  firmly  fastened  by  means  of  gutta-percha.^ 

(c)  The  tribes  of  the  Basutos  are  subdivided  into  groups,  which 
form  a  number  of  little  villages,  motsis,  placed  under  influential 
men.  The  village  settlement  is  nearly  always  in  the  form  of  a 
vast  circle,  the  centre  being  occupied  by  the  flocks,  while  the 
huts  form  the  circumference.  The  site  being  chosen,  the  chief 
drives  into  the  ground  a  peg  covered  with  charms,  in  order  that 
the  village  may  be  firmly  nailed  to  the  soil.  The  highest  spot 
is  reserved  for  the  habitation  of  the  chief.  Near  this  is  a  large 
court,  formed  by  a  circle  of  rushes  or  boughs,  which  is  the  general 
place  of  resort  for  the  men,  but  women  are  not  allowed  to  enter. 
Here  public  affairs  are  discussed,  lawsuits  decided,  and  criminal 
causes  adjudged.  In  the  centre  of  the  village  are  large  enclosures, 
perfectly  round,  formed  of  branches  of  the  mimosa,  in  which  the 
cattle  are  shut  in  the  evening  :  the  ground  is  so  holy  that  it  serves 
as  a  burial-place  for  the  chiefs  and  their  families. 

In  the  country  of  the  Batlapsis,  the  Barolongs,  and  the  Baha- 
rutsis,  where  the  heat  is  excessive  and  wood  abundant,  the  hut 
is  high  and  well  ventilated.  It  is  in  the  form  of  a  conical  dome, 
round  which  is  a  little  verandah  which  serves  to  support  the 
roof.  The  Basutos,  who  inhabit  a  mountainous  country,  en- 
deavour to  shut  out  the  cold  and  wet,  and  their  huts  are  in  the 
form  of  a  large  oval  oven,  and  are  entered  by  creeping  along  a  very 
narrow  passage,  which  serves  to  prevent  the  wind  from  reaching 
the  interior.  The  walls  are  perfectly  well  plastered,  and  often 
decorated  with  ingenious  designs.  The  sleeping  place  is  on  the 
ground.  The  most  remote  part  of  the  hut  generally  serves  as  a 
receptacle  for  the  enormous  vases  of  coarse  earthenware,  contain- 
ing the  provision  of  wheat,  and  other  articles  of  food.  The  door 
by  which  they  go  in  and  out  of  the  hut  leads  into  a  circular  court 
surrounded  by  rushes  or  branches ;  in  which  place  is  the  fire  and 
where  the  family  generally  assemble.  Each  hut  is  occupied  by 
a  married  couple  and  their  children.  A  polygamist  has  the  same 
number  of  huts  as  he  has  wives. 

The  land  is  understood  to  belong  to  the  whole  community, 
and  no  one  has  a  right  to  dispose  of  the  soil  from  which  he  de- 
rives his  support.     The  sovereign  chiefs  assign  to  their  vassals 

^Bock's  "Head  Hunters  of  Borneo,"  pp.  195-202;  "Journal  Ethno- 
logical Society"  (New  Series),  vol.  II,  p.  28. 


402  THINGS  [Part  III. 

the  parts  they  are  to  occupy,  and  these  latter  grant  to  every 
father  of  a  family  a  portion  of  arable  land  proportionate  to  his 
wants.  The  land  thus  granted  is  insured  to  the  cultivator  so 
long  as  he  does  not  change  his  locality.  If  he  goes  to  settle  else- 
where he  must  restore  the  fields  to  the  chief  under  whom  he 
holds  them,  in  order  that  the  latter  may  dispose  of  them  to  some 
other  person.  The  bounds  of  each  field  are  marked  with  preci- 
sion. The  possession  of  pasture  land  is  also  subject  to-  rules. 
It  is  understood  that  the  inhabitants  of  one  village  should  pre- 
vent their  flocks  from  grazing  on  ground  which  belongs  to  another. 
Among  the  Basutos  it  is  the  duty  of  every  petty  village  chief  to  see 
that  a  part  of  the  adjacent  territory  is  reserved  for  winter  pasture. 

The  cultivated  fields  are  generally  situated  at  some  distance 
from  the  village.  When  a  piece  of  land  is  exhausted,  another 
piece  is  cleared  by  its  side. 

The  Basutos,  Bechuanas,  and  Caffres  use  oval  hoes.  The 
blade  is  thick  in  the  middle,  and  gets  thinner  towards  the  two 
sides  and  the  lower  part,  which  renders  it  at  the  same  time  solid 
and  sharp.  It  is  furnished  at  the  top  with  a  kind  of  elongated 
tail,  which  is  inserted  into  a  hole  bored  in  the  end  of  the  handle. 
The  hoe  is  raised  perpendicularly  over  the  head,  and  allowed  to 
descend  almost  by  its  own  weight.  The  Tembukis  and  Amakosas 
dig  the  ground  with  a  little  wooden  spade. 

The  Basutos  assemble  every  year  to  dig  up  and  sow  the  fields 
appropriated  for  the  personal  maintenance  of  their  chief  and 
his  first  wife.  Hundreds  of  men,  in  a  straight  line,  raise  and 
lower  their  mattocks  simultaneously,  and  with  perfect  regularity. 

The  Basutos  preserve  their  sorgho  (a  grain)  in  large  straw 
baskets  in  the  shape  of  a  dome.  The  Caffres  have  recourse  to 
pits.  They  make  deep  excavations  in  the  enclosures  where  their 
cattle  are  penned.  The  walls  of  these  pits  are  carefully  plas- 
tered. The  opening,  which  is  only  large  enough  to  admit  a 
man,  is  even  with  the  ground.  When  the  subterranean  granary  is 
filled  the  opening  is  hermetically  sealed,  and  the  whole  is  covered 
with  a  thick  coating  of  dung  and  earth. 

Most  of  the  flocks  and  herds  captured  in  war  become  the  prop- 
erty of  the  chief,  and  the  subjects  regard  it  as  a  favour  to  become 
the  depositaries  and  guardians  of  these  new  acquisitions.  The 
milk  belongs  to  them ;  they  use  the  oxen  as  beasts  of  burden, 
and  from  time  to  time  obtain  permission  to  kill  an  animal  which 
is  already  old.^ 

1  Casalis,  "The  Basutos,"  pp.  123-178. 


Chap.  XXI,  §  4.]  THE    L.\W    OF    PROPERTY  403 

It  seems  not  difficult  to  trace  in  these  three  types  of  the  prim- 
itive mode  and  condition  of  life,  represented  by  modern  savagery, 
the  roots  of  the  tribal  and  village  communities  which  have  been 
hitherto  identified  with  Aryan  races  only.  We  have  representa- 
tives of  lake-dwellers  in  the  Dyaks  ;  of  totem  tribes  in  the  Basutos  ; 
of  the  early  crystallization  of  a  village  s^'stem  in  the  Fijis.  That 
lake-dwellers,  totem-formed  tribes,  and  settled  villagers  are 
represented  in  the  archaeological  remains  of  early  Britain  is  well 
known,  and  there  is  no  scientific  reason  why  we  should  not  pursue 
the  parallel  in  order  to  find  out  what  we  can  of  the  economical 
system  of  the  early  inhabitants  of  our  land.  I  have  stated  the 
details  somewhat  fully  in  order  to  show  how  frequently  they 
conform  to  the  evidence  of  archaeology  in  Europe,  but  an  analysis 
of  the  economical  details  presented  by  these  examples  will  show 
at  once  where  the  real  interest  of  this  suggested  parallel  begins. 
We  may  tabulate  such  an  analysis  as  follows : 

1.  The  chief,  actually  present  in  the  Basuto  village,  has  been  pushed 
upward  into  a  caste,  and  hence  disappears  from  the  Fiji  village  to  form  the 
Fiji  state. 

2.  Common  living  is  the  basis  of  the  Dyak  unit ;  the  possession  of  a 
wife  that  of  the  Basuto ;   common  descent  that  of  the  Fiji  unit. 

3.  Common  descent  brings  with  it  the  conception  of  the  sacredness  of 
the  homestead  among  the  Fijians. 

4.  The  grouping  of  houses  into  a  village  among  the  Fijians. 

5.  The  homestead  determines  the  right  of  user  in  the  village  lands 
among  the  Basutos  and  Fijians. 

6.  The  division  of  the  tribal  territory  into  homestead,  arable  and 
pasture  among  the  Basutos  and  Fijians. 

7.  The  houselands  being  carved  out  of  the  unoccupied  forest  lands  by 
the  Dyaks,  and  the  shifting  of  the  arable  lands  ]:)y  the  Basutos. 

8.  The  village  council  as  the  source  of  village  rights. 

If  we  strike  out  of  this  analysis  the  names  of  the  savage  tribes 
which  have  been  the  subject  of  our  examination,  we  might  use 
very  nearly  the  same  terms  to  describe  the  features  of  the  village 
system  of  Britain  as  it  survives  in  different  parts  of  the  country. 
Such  evidence  enables  us  to  say  that  the  village  community 
is  of  primitive  origin ;  and  that  it  is  not  stamped  with  the  marks 
of  advanced  political  progress.  And  it  is  significant  that  when 
we  come  to  consider  its  position  among  the  institutions  of  the 
Western  world,  we  never  see  it  as  the  dominant  factor  in  the 
constitution  of  nations.  In  all  the  countries  of  Europe,  including 
those  occupied  by  the  great  classical  centres  of  civilization,  it  is 
found  to  have  existed  during  times  which  are  well  within  the  ken 
of  history.  But  it  is  always  subordinated  to  a  more  or  less  strong 
central  governing  power,  and,  according  as  it  is  interfered  with  by 
the  central  authority  for  purposes  of  government,  so  is  the  pro- 


404  THINGS  [Part  III. 

portion  of  its  completeness  as  a  primitive  institution.  While 
almost  every  local  institution  of  Great  Britain  —  the  parish,  the 
manor,  the  borough  —  bears  upon  it  the  impress  of  its  origin  in 
the  primitive  village  community,  no  local  institution  of  any  im- 
portance is  an  exact  representation  of  what  might  be  expected 
to  have  resulted  from  a  normal  development  of  the  primitive 
village  community.  There  is  always  a  twist  somewhere.  Most 
generally  this  may  be  discovered  from  the  growing  commercialism 
of  post-Xorman  times  when  the  customary  law  of  England  was 
being  incorporated  into  the  king's  law.  Where  we  can  succeed 
in  subtracting  the  commercial  elements  in  English  manorial  and 
village  history  we  come  upon  the  remnants  of  the  primitive 
village  community.  These  are  represented  by  practices  and 
customs  whose  startling  antagonism  to  anything  appertaining 
to  commercial  economy  or  political  progress  is  the  one  remark- 
able phenomenon  in  English  economical  history  which  quadrates 
with  those  old  faiths,  beliefs,  and  usages,  which,  under  the  generic 
title  of  folklore,  students  have  now  shown  to  have  existed  side  by 
side,  but  subordinated  to,  the  established  religion  of  the  nation. 
This  subordinate  position  of  the  village  community  in  the  Western 
world,  contrasted  with  its  prominent  position  elsewhere,  is  a  fea- 
ture in  its  history  which  has  escaped  notice,  and  which,  when 
examined,  helps  us  to  understand  many  elements  in  its  composi- 
tion hitherto  explained  by  an  appeal  to  events  of  political  history 
which  do  not  seem  to  come  into  the  question  at  all.  It  places 
it  among  the  institutions  of  the  land  whose  origin  is  lost  in  the 
unrecorded  history  of  the  past ;  it  answers  the  question  of  those 
who  suggest  that,  because  the  village  community  is  never  men- 
tioned in  the  charters  and  diplomatic  documents  of  advancing 
political  times,  therefore  it  is  of  modern  origin ;  and,  above  all, 
it  forces  upon  the  student  the  recognition  of  a  most  important 
factor  in  its  history,  namely,  the  cause  of  its  long  continuance, 
after  the  era  to  which  it  essentially  belongs  had  wholly  passed 
away.  The  consideration  of  this  point,  indeed,  forms  a  most 
material  section  of  the  history  of  the  village  community  as  a 
primitive  institution. 

The  village  community  is  thus  presented  to  us  as  a  primitive 
institution,  having  a  prominent  position  among  the  backward 
races  and  a  subordinate  position  among  the  advanced  races  of 
the  world,  and  it  is  suggested  that  the  latter  of  these  two  phases 
is  a  survival  from  the  former.  It  should,  therefore,  be  marked 
by  all  the  characteristics  of  a  survival.     One  of  these  charac- 


Chap.  XXI,  §  4.]  THE    LAW   OF    PROPERTY  405 

teristics  will  be  found  in  the  traditional  sanction  given  to  local 
practices  by  long  ages  of  ancestral  usage.  The  evidence  of 
folklore  is  very  important  at  this  stage.  If  there  is  any  value 
in  the  contention  of  folklorists  that  the  elements  of  folklore 
are  survivals  from  primitive  belief  and  custom,  they  must  have 
belonged  to  some  form  of  social  organism.  They  were  not  always 
waifs  and  strays,  but  once  helped  to  consolidate  the  social  struc- 
ture of  which  they  formed  a  part.  As  Professor  Sayce  well  says, 
the  religion  of  the  primitive  villager  "in  its  outward  form  was 
made  up  of  rites  and  ceremonies  which  could  only  be  performed 
collectively."  ^  It  seems,  therefore,  that  we  may  fairly  classify  the 
survivals  of  folklore  and  the  survivals  of  the  village  community  as 
belonging  to  the  selfsame  stage  of  primitive  social  development. 
This  conclusion  is  considerably  strengthened  by  the  fact  that  the 
causes  of  the  survival  of  folklore  and  of  the  survival  of  the  village 
community  are  identical,  namely,  the  persistence  of  traditional 
usage.  Proof  of  this  in  the  case  of  folklore  is  hardly  needed,  and 
this  is  not  the  place  to  set  it  forth.  Proof  of  the  traditional  sanc- 
tion for  the  customs  belonging  to  the  village  community  has  never 
been  set  forth,  and  has  never  been  sufficiently  insisted  upon  as 
an  important  element  in  the  question  of  origin.  But  it  is  over- 
whelming. Fortunately  for  science,  the  backward  condition  of 
agriculture  in  this  country,  during  the  last  years  of  the  eighteenth 
century  and  the  first  decade  of  the  present,  was  so  alarming  as 
to  arrest  the  serious  attention  of  the  government.  Under  the 
able  and  indefatigable  guidance  of  Arthur  Young  and  Sir  John 
Sinclair,  the  Board  of  Agriculture  set  to  work  to  collect  informa- 
tion, county  by  county,  about  the  actual  state  of  agricultural 
industry,  the  obstacles  to  improvement,  and  the  best  means  of 
introducing  something  like  scientific  principles.  The  one  answer 
which  seems  to  have  almost  overwhelmed  the  inquirers  was  that 
the  then  existing  system  was  carried  on  simply  because  it  had 
always  been  so  from  time  immemorial  —  an  answer  which  was 
backed  up  by  deep-rooted  aversion  to  change  of  any  sort,  especially 
when  change  meant  an  enclosure  of  lands  and  the  allotment  of 
several  parcels,  held  in  common  by  a  group,  to  individual  owners. 
Over  and  over  again  in  the  reports  presented  to  the  Board  of  Agri- 
culture, and  in  contemporary  literature  dealing  with  the  same 
subject,  was  this  view  of  the  case  brought  prominently  before  the 
economical  reformers,  and  over  and  over  again  do  they  complain 
of  the  unreasoning  folly  of  the  peasant  farmers,  who  loved  to  do 

^  "Introduction  to  Science  of  Language,"  vol.  II,  p.  290. 


406  THINGS  [Part  III. 

only  what  their  fathers  had  done,  and  who  looked  upon  the 
improvements  at  last  gradually  introduced  as  so  extraordinary 
that  they  must  have  been  the  result  of  a  disordered  intellect.^ 

A  fact  of  the  highest  importance  has  thus  been  obtained  from 
the  lips  of  the  villagers  themselves,  namely,  that  the  agricultural 
practices  observed  at  the  beginning  of  the  century  were  not  the 
result  of  known  economical  forces ;  but  were,  on  the  contrary, 
derived  from  immemorial  usage,  were  therefore  traditional  methods 
of  agriculture.  Now,  traditional  methods  of  agriculture,  like 
traditional  methods  of  belief,  are  valuable  to  the  scientific  inquirer 
just  because  they  are  traditional,  and  this  brings  prominently 
before  us  an  historical  fact  of  some  importance,  namely,  that 
the  attitude  of  civilization  towards  primitive  institutions,  in  toler- 
ating them  and  keeping  them  alive  even  long  after  their  meaning 
and  usefulness  have  been  lost,  cannot  be  determined  without 
taking  count  of  primitive  economics.  The  sanction  of  tradi- 
tional reverence  for  habits  and  ways  that  have  come  down  with 
men  from  that  far-off  time  which  memory  and  fancy  hold  so  dear, 
transcends  and  keeps  in  check  even  the  forces  of  political  economy 
which  we  have  been  taught  to  look  upon  as  so  irresistible,  and  it  is 
worth  bearing  in  mind  that  some  of  the  traditional  features  of 
the  village  community  are  not  very  far  removed  from  the  social- 
ism of  to-day.  In  the  history  of  human  thought  it  will  be  found 
that  the  influences  of  traditional  ideas  far  outweigh  the  influ- 
ences of  philosophy. 

Thus  our  preliminary  examination  of  the  village  community  by 
the  light  of  comparative  custom  has  led  us  first  to  see  that  it  is  a 
product  of  the  backward  races  of  the  world,  not  of  the  foremost ; 
secondly,  that  its  existence  amidst  the  more  advanced  institu- 
tions of  civilization  is  due  to  survival,  not  to  creation ;  and, 
finally,  that  from  its  widespread  existence,  absolute  proof  of 
which  has  not  however  been  undertaken,  it  represents  a  phase 
of  economic  development  through  which  all  progressive  races 
must  have  passed. 

1  See  Stewart's  !' Highlanders  of  Scotland,"  vol.  I,  pp.  147,  228. 


Chapter  XXII 
ORIGIN  OF   COMMERCIAL  INSTITUTIONS  ^ 

In  tracing  the  advances  in  civilization,  made  by  the  various 
peoples  of  the  earth,  one  can  seldom  mark  off  with  certainty  the 
distinction  between  what  is  borrowed  and  what  is  independently 
devised.  Certain  typical  features  are  repeatedly  revealed  to  us 
in  the  most  widely  separated  epochs,  yet  with  a  most  astonishing 
likeness.  These  surprising  similarities  meet  us  alike  in  the  in- 
fancy,^ the  youth,  and  the  maturity  of  nations  so  completely  cut 
off  from  each  other,  that  no  influence  of  one  by  the  other  can  ex- 
plain what  we  find. 

1.  Barter,  and  Money;  Peddling;  Personal  Sale;  Foreigners  and 
Brokers.  Primitive  men,  as  yet  without  a  State  or  any  other  or- 
ganized form  of  community,  and  lacking  the  advances  which  man  in 
history  shows  us,  lived  without  any  exchange  of  goods.  The  de- 
velopment of  the  human  race  is  fulfilled  only  in  proportion  to  the 
constant  increase  of  intercourse  and  association,  supporting  and 
stimulatmg  material  needs  and  assistance,  both  economic  and  in- 
tellectual. It  is  a  notable  stage  when  dwelling-places  become 
fixed,  and  division  of  labor  thus  necessarily  arises  and  separate 
occupations  are  formed.  The  habitual  exchange  of  products  pre- 
supposes that  private  ownership  has  been  recognized ;  this  ap- 
pears already  in  the  primitive  period,  at  least  for  movables. 

In  its  first  stages,  all  exchange  of  products  is  marked  by  three 
features  :  the  transaction  is  a  barter  (goods  for  goods)  ;  it  is  itiner- 
ant (house  to  house) ;  and  the  producer  is  his  own  distributor. 

1  [This  passage  is  a  translation  of  pp.  19^6,  §  4  (omitting  a  portion)  of 
Levin  Goldschmidt's  "Universalgesehichte  des  Handelsrechts,"  Part  I. 
This  work,  of  which  no  more  was  ever  published,  formed  the  first  portion 
of  the  third  edition  of  the  author's  projected  "Handbuch  des  Handels- 
rechts," and  appeared  in  1891  (Ferd.  Enke,  Stuttgart),  shortly  before  his 
death.  The  author  was  the  greatest  authority  of  his  generation  on  the 
history  of  commercial  law. 

The  translation  is  by  John  H.  Wigmore.] 

-  Of  course,  we  do  not  possess  a  knowledge  of  the  infancy  of  certain 
peoples,  —  hardly  any  for  the  Germans  and  the  Hellenes ;  and  none  at 
all  for  the  Italics  and  for  the  extensive  Semitic  and  Hamitic  States  of  Asia 
and  North  Africa,  which  were  destined  early  to  attain  a  luxuriant  growth. 

407 


408  THINGS  [Part  III. 

(1)  Very  early,  as  soon  as  a  common  medium  of  exchange  is 
formed,  i.e.,  money,  this  elementary  barter  develops  into  regular 
selling-trade.  This  appears  first  in  the  intercourse  between  mem- 
bers of  different  nations  or  tribes.  The  "money  "  is  some  product 
held  in  greatest  esteem  (jewels,  cattle,  tool-materials,  salt,  etc.) ; 
but  the  substance  does  not  matter,  either  economically  or  legally. 
If  indeed  the  "money  "  is  a  substance  valued  only  within  a  people's 
own  territory,  the  external  trade  of  that  people  will  of  course  be 
barter.  The  wider  the  circle  in  which  the  particular  medium  is 
recognized,  the  more  regular  and  extensive  is  the  trade.  In  all  the 
great  peoples  of  civilization  the  metals  have  served  as  money. 
Their  order  of  succession  has  been  generally  (but  not  always)  : 
copper,  silver,  gold.  At  first,  mere  bars  or  ingots  were  used  (meas- 
ured by  weight  and  fineness)  ;  later,  coins  were  devised,  the  State 
stamp  guaranteeing  the  weight  and  fineness.  Yet,  even  at  a  highly 
developed  stage,  bar-money  has  remained,  both  for  internal  com- 
merce (as  in  China)  and  for  international  commerce,  a  safest  me- 
dium for  exchange  and  pajTuent. 

(2)  House-to-house  peddling  is  replaced  (but  only  gradually) 
by  fi.ved  places  of  trade ;  yet  even  in  our  own  day  the  traveling 
peddler  is  found,  in  thinly  populated  districts  and  in  the  once 
highly  civilized  countries  of  Asia  and  Africa. 

(3)  Among  the  latest  features  to  appear  is  trade  through  factors 
and  brokers;  for  commercial  rights  must  first  have  become  es- 
tablished and  a  system  of  credit  developed.  In  the  earliest  period, 
there  is  naturally  little  exchange  of  goods  between  members  of  the 
same  community.  Extensive  and  regular  exchange  arises  through 
the  effort  of  foreign  dealers  brmging  into  a  country  wares  which 
both  stimulate  and  satisfy  some  need  —  jewelry,  metals,  weapons, 
tools,  wines,  etc.  In  exchange  for  these  desired  articles,  the 
foreigner  takes  away  some  surplus  product  of  the  place.  The  for- 
eign trader  may  come  merely  from  another  district,  or  from  another 
clan,  or  even  people.  To  the  mistrustful  primitive  mind,  he  is 
both  welcome  and  hateful.  Throughout  the  primitive  period,  and 
indeed  even  in  every  people's  "  Middle  x\ges,"  the  skilled  foreign 
trader,  constantly  getting  the  best  of  the  native  in  the  transac- 
tion, is  regarded  as  a  cheat.^ 

1  Hence,  apparently  the  Greek  /cdTnjXos  (trader)  derives  his  name. 
Hence,  too,  Ulysses'  precautions  against  being  mistaken  for  a  foreign 
trader  ("Odyssey,"  VIII,  158  ff.) ;  Ulysses  at  Phaeacia  declines  to  take 
part  in  the  athletic  contests,   whereon  the  Phseaeian   champion  sneers : 

"Stranger,  I  well  perceive  thou  canst  not  boast, 
As  many  others  can,  of  skill  in  games. 


Chap.  XXII.]         ORIGIN   OF   COMMERCIAL   INSTITUTIONS  409 

In  the  primitive  stage,  the  chieftain  decides  whether  the  visits  of 
outsiders  shall  be  permitted ;  thus,  after  the  benefits  of  regular 
trade  come  to  be  appreciated,  the  chieftains  often  are  found  holding 
a  monopoly  of  its  exercise.  At  first,  through  mutual  distrust  and 
lack  of  common  language,  the  bargaining  is  done  by  signs.  In  a 
later  stage,  a  go-between,  skilled  in  languages,  is  employed ;  ^ 
hence  the  professional  interpreter  and  the  broker  come  to  play  an 
important  part  in  trade  with  foreigners ;  and  the  official  broker  is 
required  to  be  employed." 

As  domestic  industry  grew  in  strength,  and  competition  became 
more  keen,  the  domestic  trader  developed,  though  gradually  only  ; 
finally,  he  becomes  the  important  figure,  displacing  the  foreigner. 
Retail  trade  is  of  course  the  only  trade  at  first;  as  wholesaling 
grows,  it  becomes  a  separate  occupation.  Domestic  industry  and 
hand-labor  develops  at  last  the  machine-factory  system.  The 
medieval  features  and  their  stages  of  development,  viz.,  home- 
industry,  hand-labor,  separation  of  the  wholesale  contractor  from 
the  retail  seller  of  stocks  on  hand,  seem  in  the  main  to  have  been 
true  of  the  ancient  nations. 

2.  Markets,  Caravans.  The  more  toilsome  and  dangerous  was 
trade,  the  less  the  competition,  hence  the  more  irregular  and  unset- 
tled the  methods  of  commerce  ;  hence  the  higher  the  profit.  The 
prices  were  virtually  monopoly  prices.  Prices  came  to  be 
equalized  as  markets  and  fairs  grew  up,  —  culminating  in  the 
modern  bourses  and  exchanges,  erected  at  fixed  places  and  kept 
continuously  open.^ 

But  thou  art  one  of  those  who  dwell  in  ships  • 

With  many  benches,  rulers  o'er  crews 

Of  sailors,  —  a  mere  trader,  looking  out 

For  freight,  and  watching  o'er  the  wares  that  form 

The  cargo.     Thou  hast  doubtless  gathered  wealth 

By  rapine,  and  art  surely  no  athlete." 

'  At  Dioscurias,  on  the  Black  Sea,  three  hundred  languages  could  be 
heard,  and  the  Romans  there  had  one  hundred  and  thirty  interpreters 
(Straho,  XII,  498). 

2  We  find  this  in  the  first  trade  treaty  (a.d.  509)  between  Carthage  and 
Rome;  and  again,  in  the  treaties  of  the  1200  s,  and  later  between  Italy 
and  the  Moslem  States,  this  personage  is  termed  "  turcimanus,"  the  modern 
"dragoman."  It  is  worth  noting  that  the  Roman  term  was  borrowed 
from  the  Greek  ;  the  medieval  one  ("sensalis")  from  the  Arabic  ("simsar"), 
and  the  middle  High  German  ("doUmetch")  from  the  Turkish  through 
the  Sla\nc  or  Hungarian.  The  inn-keeper  of  the  Middle  Ages  was  often 
at  the  same  time  the  interpreter  and  the  lawful  broker  for  the  foreign 
merchants  who  lodged  with.  him. 

'  The  market  price  is  based  on  substantially  constant  standards  of 
value.  From  the  merchant's  professional  point  of  \new,  goods  and 
money  cease  to  be  simply  consumable  things ;  they  become  spendable 
things  (capital) ;    the  merchant  is  thus  the  representative  of  capitalism. 


410  THINGS  [Part  III. 

The  market  was  a  place  where  producer,  trader,  and  consumer 
all  met  at  appointed  times.  At  first  it  was  usually  a  tract  of  land 
placed  specially  under  religiovis  protection  (''peace-girt")  on  the 
borders  between  two  tribal  or  national  territories.  Between  the 
peoples  or  tribes,  or  even  villages,  their  normal  relation  would  be, 
primitively,  one  of  mutual  hostility  ;  and  to  make  possible  the  de- 
sired exchange  of  goods,  a  "  trade-peace"  was  agreed  upon,  ex- 
pressly or  implicitly,  at  least  for  the  period  of  the  treaty.  This 
arrangement  for  the  market,  as  well  as  for  the  usual  tribal  feast- 
days  and  the  court-assemblies,  was  usually  connected  with  the 
religious  cults  of  the  peoples,  or  itself  developed  a  new  one.  Trade 
and  religion  found  a  common  meeting  point. ^  The  market-trade 
came  to  be  given  protection  by  formal  treaties  of  amity  and  com- 
merce. Here  we  reach  the  beginning  of  international  customary 
law;  and  the  traditional  readiness  to  overreach  the  foreigner 
becomes  discountenanced. 

For  going  to  the  market-day  and  the  feast-day  (holy-day),  great 
travel  caravans  were  "formed,  of  pilgrims  and  merchants,  usually 
both  together.  A  system  of  regular  transportation  began.  It 
involved  huge  expense,  indeed,^  for  the  roads  lay  through  the  un- 
inhabited deserts  and  plains  of  Asia  and  Africa  and  amidst  regions 
of  marauding  nomads.  These  latter  persons  are  the  owners  and 
breeders  of  the  animals  needed  by  the  merchant  for  his  transport ; 
and  for  many  nomad  races  the  chief  business  became  (and  still  is) 
the  supply  of  caravans.^  The  pilgrim-caravans,  indeed  {e.g.  to 
Mecca),  still  were  virtually  traveling  markets;  the  pilgrims  form- 
ing a  market  community  at  the  various  stations.  Little  by  little 
permaifent  roads  develop.  Towns  grow  up  around  or  near  the  mar- 
ket-places, and  become  the  permanent  and  extensive  centers  for 
regular  trades,  which  gradually  specialize.  Thus  the  "  market- 
peace  "  becomes  the  "town-peace." 

3.  Sea-Traffi,c;  AdmiraHy;  Trade-Colonies.  Meanwhile,  sea 
carriage  and  sea-traffic,  starting  with  fishery,  was  developing  on 
the  great  rivers,  the  coasts,  and  the  open  sea.     Originally,  the 

Among  all  the  occupations  the  merchants'  (or  traders')  is  the  earUest 
to  cease  to  be  an  incidental  home  industry  and  to  become  a  complete 
occupation  by  itself. 

1  Lampreciit  tells  us,  in  the  Middle  Ages,  of  the  large  towns  which  had 
"not  only  the  largest  trade,  but  almost  always  the  best  relics  of  saints." 

2  Even  in  modern  times,  for  freighting  a  single  caravan  in  India,  4000 
camels  have  been  used.  The  burthen-animals  earliest  used  were  the  ass, 
the  horse,  the  mule ;  the  camel  was  introduced  elsewhere  from  Arabia. 
The  wagon  is  first  found  in  Alexander's  time. 

^  Anciently,  better  organized  than  now. 


Chap.  XXII.]         ORIGIN   OF   COMMERCIAL   INSTITUTIONS  411 

vessel  was  a  tree-trunk  hollowed  out ;  then  it  was  a  framework  of 
wdthes  or  beams  covered  with  skins ;  mast,  rudder,  sails,  were  then 
added.  The  first  voyagers  kept  in  sight  of  land ;  and  the  devious 
lengths  of  the  ^Mediterranean  coast  were,  for  a  period,  the  usual 
limits  to  the  sea-trafRc  of  those  peoples.  But,  as  the  art  of  seaman- 
ship developed,  and  the  observation  of  the  heavens  increased  their 
knowledge  of  astronomy  (amounting  in  Babylon  to  a  veritable 
science),  the  voyages  were  made  on  the  high  seas,  as  early  as  the 
Phoenician  period,  and  as  distant  as  to  the  Red  and  the  Persian 
seas,  the  Atlantic  and  the  Indian  oceans.  Though  the  use  of  sails 
reached  a  complete  development,  nevertheless,  the  oar-boat 
(galley,  etc.)  remained  the  usual  (though  manifold)  type  of  vessel 
throughout  all  antiquity  and  till  nearly  the  end  of  the  Middle 
Ages.  Hence  in  the  winter  months  (until  up  to  modern  times)  it 
was  customary  ^  to  cease  sea-trips  ("  closed  shipping  season  "). 
Piracy,  well  down  into  the  INIiddle  Ages,  is  closely  connected  with 
the  history  of  sea-traffic.^  And  just  as  convoyed  protected  cara- 
vans developed  on  land,  so  arose  regular  admiralties  {''  conservse  ") 
to  convoy  the  merchants'  ships. 

In  the  early  Asiatic  empires  and  in  Africa,  the  land-commerce 
naturally  was  the  greatest  part.  But  with  the  rise  of  the  Phoe- 
nician coast-tow^ns,  then  of  Hellas  and  of  Italy  (greater  Greece, 
Etruria),  sea-commerce  came  into  the  foreground  ;  and  this  domi- 
nation it  preserved  until  very  modern  times  —  the  era  of  railroads. 
Herodotus  opens  his  history  of  the  Greek  world  by  a  description 
of  sea-commerce  :  "  The  sea  is  a  road,  which  unites  the  peoples  of 
the  earth  to  each  other.  He  who  dwells  inland  is  as  one  shut  off 
from  the  facilities  and  attractions  of  human  intercourse  anH  unac- 
quainted with  the  progressive  growth  of  the  race."  It  was  only 
through  sea-commerce,  in  antiquity,  that  local  industrial  seclusion 
was  overcome  and  the  lines  of  organization  for  the  world's  trade 
were  marked  out.  An  important  part  of  the  principles  of  coriwier- 
cial  law,  in  ancient  times  as  well  as  in  the  Middle  Ages,  had  their 
origin  in  sea-commerce  and  thence  ^  were  gradually  imported  into 
land-commerce.^ 

1  Rhodes  was  an  exception. 

^  The  oldest  hero-myths  of  the  Greeks  —  the  Argonauts  and  the  Trojan 
expedition  —  turn  upon  feats  of  piracy.  The  Vikings  of  Skandina\ia 
were  both  sea-merchants  and  sea-robbers.  The  Pisans  in  the  1200  s 
still  conceived  of  sea-war  and  piracj-  as  a  business  bringing  wealth.  The 
Arab  merchant  of  Africa  was,  even  to  modern  times,  primarily  a  robber 
of  men  to  sell  as  slaves. 

5  There  were  exceptions;  e.g.  the  law  of  general  average  ("lex  Rhodia 
de  jactu"). 

*  This  influence  is  mostly  clearly  revealed  in  the  law  of  Rome  and  of 


412  THINGS  [Part  III. 

The  sea-coast  communities  (Phoenicians  and  Carthaginians, 
Hellenic,  Romanic  Mediterranean,  North  Germanic)  came  to 
open  up  permanent  trading  posts  ("  factories  ")  in  the  foreign  land 
itself,  —  usually  after  a  considerable  period  of  ordinary  trading 
with  that  place.  In  some  cases,  colonies  grew  up,  i.e.,  separate 
communities  of  their  own  members ;  Greece  and  Carthage  were 
the  first  to  create  such  colonies  by  design.  In  these  trading-posts 
and  colonies  groups  of  foreign  traders  settled  down  (sometimes  re- 
maining for  life)  and  managed  their  own  affairs ;  usually  preserv- 
ing the  religion  and  the  law  of  their  original  home.  Throughout 
antiquity  and  the  Middle  Ages  (and  in  places  even  to-day,  as  in 
the  Levant  and  the  Far  East  of  Asia)  they  formed  a  community  of 
their  own,  alien  in  religion  and  in  law^s  to  the  people  in  whose  terri- 
tory they  abode.  Here  the  most  striking  analogies  re-appear  be- 
tween the  oldest  trade-settlements  recorded  in  history,  the  Romanic 
and  the  Hanseatic  traders  of  the  INIiddle  Ages,  and  the  European 
instances  of  the  present  day  in  the  Orient.  Through  these  trade- 
stations  the  network  of  commercial  interests  extended  over  the 
whole  globe.  The  general  method  and  aim  was  to  exploit  the 
wealth  of  the  country  of  their  settlement,  and  to  control  its  com- 
merce, or  at  least  its  distributing  trade.  As  the  native  communi- 
ties grew  stronger  and  learned  how  to  get  along  without  the  for- 
eigners, they  devised  ways  to  drive  out  their  now  unwelcome 
teachers,  or  to  assimilate  them. 

4.  Credit;  Interest;  Banks;  Commercial  Paper.  Along  with 
barter  and  cash-sale  there  early  appears  the  first  form  of  credit- 
transaction,  the  loan.  The  charge  of  interest  appears  in  the  Orient 
at  an  early  stage.^  In  the  more  advanced  stages,  when  money  has 
become  the  universal  medium,  the  use  of  credit  in  commerce  grad- 
ually expands  to  a  vast  extent ;  here  again  the  peoples  of  the 
Orient  are  the  earliest.^  The  security  of  the  credit  is  found  in 
personal  suretyship  and  property-gages  of  various  forms.  The 
loan  (as  a  business  transaction)  is  a  leasing-out  of  capital ;  hence 
it  involves  a  charge  for  the  use  of  the  capital.     In  a  community 

the  Romanic  Mediterranean  States ;  for  example,  the  "actio  exercitoria," 
the  "receptum  nautarum,"  the  "foeniis  nauticum,"  in  the  former  law, 
and  the  "commenda,"  the  insurance  by  premium,  and  the  stock-company, 
in  the  latter  law.  Even  the  ordinary  bill  of  exchange  derives  its  essential 
features  from  the  maritime-loan  contract,  borrowed  into  land-commerce. 

1  With  the  Greeks,  perhaps  not  yet  used  in  Hesiod's  time  (though 
they  had  special  penalties  for  delayed  payment,  etc.).  With  the  Germans, 
it  was  unknown  in  Tacitus'  time. 

^  In  the  Germanic  tribes,  and  in  North  Germany,  even  into  the  1400  s, 
transactions  on  credit  were  scanty. 


Chap.  XXII.]         ORIGIN   OF   COMMERCIAL   IXSTITUTIOXS  413 

where  fungible  ^  goods  (gold,  grain,  cattle)  re-paying  the  loan  are 
not  abundant,  or  where  for  any  reason  (personal  or  social)  the  pros- 
pect of  repayment  is  uncertain,  credit  is  scanty.  And  the  scantier 
is  credit,  the  higher  will  be  the  interest-charge.  In  early  times 
the  borrowing  of  capital  was  an  extremity  unwelcome  and  abhor- 
rent. The  very  act  of  borrowing  was  often  only  the  first  step  to 
commercial  downfall.^  The  habitual  lender-on-interest,  the  capi- 
talist ("  usurarius  ")  tends  to  exploit  his  advantage  selfishly,  often 
ruthlessly,  and  became  a  hated  object.  Popular  opinion  even  stig- 
matized as  usurious  the  ordinary  interest-loan  indispensable  to 
commerce,  if  the  borrower's  results  from  its  productive  investment 
turned  out  to  be  scanty.  The  history  of  usury  {i.e.,  interest  on 
capital  loaned)  is  one  of  the  richest  chapters  in  the  legal  and  eco- 
nomic annals  of  all  epochs.  Only  the  greatest  commercial  peoples 
(Babylonians,  Phoenicians,  Athenians)  disdained  either  to  forbid 
interest-charges  or  to  fix  their  maximum.  Not  until  our  own  times 
was  reached  that  view  of  usury  which  is  alone  tenable  in  ethics, 
economics,  or  law,  viz.,  usury  depends  on  whether  the  particular 
transaction  is  in  fact  an  exploitation  of  one  party  by  the  other : 
^'  non  quantitate  pretii,  sed  qualitate  facti  sestimatur." 

In  primitive  times,  this  scanty  resort  to  commercial  credit  goes 
along  with  another  feature,  the  harshness  of  the  law  to  the 
debtor. 

As  the  use  of  credit  and  money  increases,  a  special  occupation 
develops,  the  ba)iking-tTade.  As  early  as  in  Phoenicia  and  Baby- 
lonia the  money-changer  (banker)  is  regularly  found  with  the  other 
merchants.  He  tests  the  coins,  reckons  their  equivalence,  receives 
and  takes  care  of  investments  of  surplus  money-capital. 

The  idea  of  salable  property,  at  first  confined  to  tangible  things, 
enlarges  gradually,  to  include  credit-obligations,  especially  those 
embodied  in  documents  (commercial  paper).  Finally  it  brings 
within  the  protection  of  the  law  those  relations  of  patronage  for 
ideas  which  have  come  to  be  included  (inadequately)  under  the 
term  "intellectual  property"  —  copyright,  trademark,  and  pat- 
ents for  inventions. 

As  occupations  of  trade  become  specialized,  and  a  commerce 
based  on  money-values  develops,  along  with  a  credit-system  also 
based  on  the  use  of  money),  the  "capitalistic"  organization  of 

1  ["Funj^ible,"  a  good  Roman  law  word,  is  the  only  term  that  expresses 
the  idea  of  uniformity  in  the  single  pieces  of  an  article,  such  that  any 
number  of  them  is  equivalent  to  any  other  number.) 

-  Hesiod,  "Works  and  Days,"  G47,  classes  the  fear  of  borrowing  with 
the  fear  of  being  hungry. 


414  THINGS  [Part  III. 

society  —  part  and  parcel  of  the  division  of  labor  comes  into 
full  existence. 

5.  Slavery.  An  institution  universally  found  in  primitive  times 
is  slavery.  This,  to  be  sure,  itself  marks  a  step  of  progress  beyond 
the  earliest  customs,  that  of  the  destruction  of  all  enemies,  and 
even  of  aliens  in  general,  as  well  of  debtors  and  wrongdoers. 
Throughout  the  ^Middle  Ages  it  persisted  among  the  Christianized 
peoples,  and  to  our  own  times  among  non-Christian  peoples.  In 
a  mild  and  patriarchal  form  it  was  found  in  the  Orient,  and  in 
the  earlier  Hellenic  and  Roman  period,  as  well  as  among  the  Ger- 
manic periods.  Its  harsher  form  marks  particularly  the  later 
Roman  period,  and  the  still  later  Christian  times  of  negro  slavery. 
A  related  feature  —  not  abandoned  by  even  the  Christian  commu- 
nities tmtil  the  1700  s  —  was  serfdom  (in  various  forms).  The  con- 
ditions of  primitive  slavery  and  serfdom  varied,  of  course,  accord- 
ing to  the  type  of  its  economic  life,  and  therefore  of  its  laws  of  trade. 
As  this  element  in  the  community  gradually  diminishes,  the  class 
of  small  traders  becomes  professionally  stronger ;  the  formation 
of  a  "  middle  class  "  ("  third  estate  ")  is  favored  ;  and  the  principle 
of  association  (group  organization)  is  fully  developed ;  and  the 
differentiation  of  types  of  commercial  transactions  is  stimulated, 
so  that  each  has  its  own  group  of  practitioners  and  its  distinctive 
legal  rules,  —  wholesale  dealers,  carriers,  and  many  others. 

6.  Wholesale.  The  economic  principles  underlying  wholesale 
and  retail  trade  being  different,  and  the  social  position  of  the  capi- 
talist wholesaler  being  naturally  above  that  of  the  retailer,  a  differ- 
ence was  not  uncommonly  found  (notably  from  the  ^Middle  Ages 
onwards)  in  the  law's  treatment  of  them,  —  in  eligibility  to  high 
office,  etc.,  in  police  regulations,  and  in  tax  methods.  No  princi- 
ple, however,  for  drawing  an  exact  line  between  wholesale  and  re- 
tail trade,  or  between  machinery-factories  and  manual  or  house- 
industry  seems  ever  to  have  been  attainable.  And  the  modern 
tendency  is  to  go  beyond  mere  negative  abolition  of  the  distinction, 
and  to  articulate  anew  the  relations  of  industrial  society. 

7.  Commercial  Custom  and  Laws;  Mercantile  Honor;  Status  of 
Foreigners.  The  positive  law  of  the  State  is  merely  the  external  em- 
bodiment of  some  legal  principle  immanent  in  the  life  of  any  partic- 
ular epoch  and  people.  Each  specific  legal  transaction  or  relation, 
sale  or  partnership,  bearer-bills  or  checks,  marriage  or  filial  status, 
citizenship  or  trade  with  neutrals  —  has  a  distinctive  purpose 
(reXo?)  of  its  own,  and  therefore  a  nature  objectively  ascertain- 
able C'  Natura,"  "  natura  rei,"  "  natura  lis  ratio").     The  transac- 


Chap.  XXII.]        ORIGIN   OF  COMMERCIAL  INSTITUTIONS  415 

tion  or  rule  is  variant,  indeed,  according  to  time  and  place,  —  the 
national  traits  and  the  changes  in  the  course  of  civilization.  Thus 
develops  a  common  consciousness  of  the  principles  just  and  suit- 
able for  these  purposes.  The  principle  may  indeed  be  imperfectly 
carried  out  in  law,  or  even  perverted ;  for  the  ideal  to  be  attained 
varies  in  law  as  in  art,  and  the  juristic  gifts  of  different  nations  vary 
extremely  (as  with  the  Romans  and  the  Hellenes,  for  mstance). 

In  commerce,  as  in  other  relations,  what  we  call  law  appears  at 
first  only  as  social  custom  ;  not  until  later  does  it  take  the  form  of 
legal  enactment.  The  customs  of  commerce  were  formed  chiefly 
in  the  various  tradal  occupations.  Wholesale  and  retail  dealers 
were  grouped  separately,  and  the  former  were  mternational  in 
character.  In  primitive  times  the  State  has  but  slender  power  and 
activity  to  protect  trade  by  courts  and  police,  and  the  treaties  with 
foreign  peoples,  supplementing  domestic  law,  are  equally  scanty; 
to  this  extent  it  was  then  the  more  natural  and  necessary  that  the 
mercantile  groups  should  develop  definite  and  inviolable  customs, 
often  under  the  sanction  of  religion,  from  which  the  individual 
trader  departed  at  his  peril.  This  growth  of  fixed  custom,  gradu- 
ally condensed  into  customary  law,  was  furthered  by  the  physical 
and  social  conditions  of  the  times.  Trade  was  restricted  to  certain 
seasons  and  places ;  land-roads  were  scanty  and  unsafe,  and  inns 
were  few.  Ship-convoys  and  land-caravans  had  fixed  rules  of  the 
road.  Moneys  and  their  valuation,  and  indeed  every  tradal  trans- 
action, even  the  simplest  —  and  the  simplest  were  those  of  widest 
observance  among  nations  —  became  subject  to  these  fixed  "  folk- 
ways." And  here  developed  the  great  and  indispensable  mercan- 
tile principle  of  good  faith  (commercial  honor). ^  At  the  markets 
and  fairs,  especially,  grew  up  the  system  of  fixed  terms  and  periods 
for  payment  and  credit,  of  organized  supervision,  and  of  speedy 
court-procedure. 

This  principle  of  good  faith  was  of  special  significance  in  its 
relation  to  foreigners.  In  primitive  times,  as  in  classic  times,  and 
even  until  late  in  the  INIiddle  Ages,  the  foreigner  was  without  the 
pale  of  law  and  rights  (except  indeed  when  given  temporary  protec- 
tion in  the  status  of  "  guest-friend,"  long  sanctioned  by  religion) .^ 

'  The  Greek  "Tr/tms,"  the  Roman  "(bona)  fides." 

2  The  view  of  some  scholars,  that  the  institution  of  "guest-friend" 
was  devised  (by  the  Phoenicians)  to  assist  commercial  intercourse,  is  open 
to  much  doubt,  in  that  it  undervalues  the  ethical  and  the  religious  motive. 
In  ^-Eschi/lus'  "Eumenides  "  (v.  531  ff.),  in  the  list  of  Roman  moral  duties, 
that  of  "hospitium"  is  named  even  before  that  of  blood-relationship. 

The  primitive  society  is  of  course  founded  on  an  exclusi^•e  community 
of  religious  cult ;   its  law  and  rights  are  for  its  own  members  only.     The 


416  THINGS  [Part  III. 

But  gradually,  by  treaty,  or  by  custom,  or  by  special  enact- 
ment conceding  limited  rights,  he  came  to  receive  the  legal  right 
known  at  Rome  as  "  commercium,"  i.e.,  to  participate  in  trade 
under  protection  of  law  ;  and  a  special  procedure  is  later  allowed,  to 
speed  the  suits  of  foreigners,  mainly  in  commercial  cases. 

Nevertheless,  there  obtained,  even  till  modern  times  (with  elabo- 
rate development  in  medieval  Italy),  a  special  discrimination  in 
the  principle  of  reprisal.  The  pruiciple  that  one  wronged  by  per- 
sonal injury  or  by  default  in  a  debt  might  seek  redress  from  the 
family  or  relatives  of  the  wrongdoer,  allowed  him,  when  the  wrong- 
doer was  a  foreigner,  to  resort  to  any  fellow-countryman  within 
the  territory.  Herein  lay  the  kernel  of  a  far-spreading  principle  of 
solidarity.  Gradually  certain  customs  of  commerce,  originally 
local  to  a  tribe  or  territory,  tended  to  become  universal,  when  fitted 
to  do  so;  while,  conversely,  certain  general  customs  of  nations 
became  locally  accepted  and  differentiated,  by  statute  or  code. 
Here  came  into  play  the  influence  of  the  dominantly  commercial 
peoples  and  cities.  These  left  indelible  marks  upon  commercial 
custom  and  law,  while  the  other  communities  played  chiefly  a 
receptive  role.  In  far  antiquity,  the  Phoenicians  stand  out  as  the 
merchant-people ;  in  the  IVIiddle  Ages,  the  Genoese,  the  Lom- 
bards, the  Hanse  towns ;  in  East  Europe,  often  the  Jews ;  in  the 
Orient  of  to-day,  the  Greeks,  the  Armenians  and  the  English.  A 
special  mark  of  such  trade-supremacy  is  usually  revealed  in  the 
wide  currency  of  the  coins  of  that  people  or  town.^ 

8.  Lines  of  Evolution.  In  human  transactions,  as  well  as  in 
the  laws  that  govern  them,  the  double  aspect  of  all  evolution  may 
be  observed,  i.e.,  the  principle  of  successive  stages  of  differentia- 
tion and  integration  (heterogeneity  and  homogeneity).  The 
simple  transactions  of  exchange,  credit,  association,  —  the  medie- 
val loan  and  joint-undertaking  ("  commenda  "),  —  the  Roman 
power  of  attorney  ("  mandatum  "), -^  the  Skandinavian  joint- 
tenure  ("felag"),  —  these  and  many  other  typical  transactions 
produce  gradually  a  number  of  distinct  varieties.  A  transaction 
originally  having  a  simple  and  narrow  use  enlarges  into  a  type, 
assimilating  many  similar  species.     Marine  insurance,  for  example 

Greek  word  for  "guest,"  " ^^vos,"  originally  means  "enemy,"  "alien"; 
so  also  the  Gorman  "gast";  and  the  Latin  "hostes,"  which  afterwards 
preserved  this  ineaning  in  the  broader  "peregrinus."  And  the  Slavic 
"gosti"  signified  both  "stranger"  and  "merchant,"  for  the  foreigner 
was  generally  a  merchant. 

^  E.g.,  those  of  Babylon,  Athens,  Byzantium,  the  Arabian  empires, 
Venice,  Genoa,  Barcelona,  the  Champagne  markets,  Cologne,  and  (in 
modern  times)  England. 


CiiAi'.  XXII. j  ORIGIX    OF   COMMERCIAL   INSTITUTIONS  417 

—  the  earliest  form  —  (leveloj)s  into  insurance  of  various  sorts; 
groups  of  ])erscjns  contributing  jointly  for  \arious  puri)oses  (pro- 
tection, purchase)  develop  a  type  of  economic  association;  com- 
panies formed  to  carry  on  colonies,  banks,  and  insurance,  develop 
the  general  type  of  stock-company.  Conversely,  legal  transac- 
tions and  relations  originally  inde[)endent  of  each  other,  are  ulti- 
mately recognized  (by  courts,  legislators,  and  jurists)  to  be  united 
in  principle,  as  varieties  of  a  single  economic  and  legal  type.  For 
<'xample,  the  classification  of  all  commercial  associations  intf)  the 
three  varieties,  viz.,  partnership,  limited  partnership,  and  stock- 
company,  was  first  made  in  modern  times,  in  the  French  Code  of 
Commerce  (1807).  Sometimes  the  manifold  forms  originally  exist- 
ing, or  afterwards  developed,  fall  gradually  int(i  disuse,  and  u  single 
form  replaces  them ;  for  not  every  simplification,  in  evolution, 
signifies  progress.  For  example,  the  original  lloman  transactions 
of  "  sponsio,"  "  fidepromissio,"  "  mandatum,"  "  constitutum 
debiti,"  "  receptum  argentarii,"  **  fidejussio  argentarii,"  give  place 
to  a  colorless  abstraction,  viz.,  warranty  or  suretyship.  So  also 
the  sundry  primitive  forms  of  joint  obligation  are  rejjlaced  by  the 
single  idea  of  solidarity ;  and  the  innumerable  kinds  of  marital 
property  tenures  are  simplified  into  a  few  tyi)es. 

The  kernels,  or  even  the  defined  principles,  of  important  legal 
institutions  can  sometimes  be  traced  in  existence  for  centuries,  be- 
fore they  come  to  their  full  development.  Here  the  liindrance  was 
perhaps  some  unfavorable  economic  condition,  or  some  rival  legal 
principle ;  until  finally,  under  changed  conditions,  the  principle 
reached  its  maturity.  The  early  classic  times,  for  example,  pos- 
sessed the  principle  of  insurance,  of  money-remittance  by  bill  of 
exchange,  of  instruments  transferable  to  order  or  bearer;  yet  all 
of  these,  so  far  as  can  })e  learned,  waited  for  a  thousand  years  or 
more  h)efore  they  found  general  recognition. 

9.  Commercial  Law  as  a  Separate  Body  of  Law.  A  special  law  of 
commerce,  as  a  separate  branch,  had  not  been  known  as  early  as 
the  times  of  the  Oriental  peoples.  In  classic  anticpiity,  and 
among  the  Germanic  peoples,  it  appeared  only  in  the  nucleus. 
Nevertheless,  a  considerable  j>art  of  private  law  in  classic  times,  as 
well  as  in  the  Gennanic  period,  after  the  rise  of  tlie  great  medieval 
cities,  bears  dominantly  commercial  features,  and  is  formed  partic- 
ularly to  favor  the  needs  of  commerce,  especially  the  wholesale 
trade  between  nations  and  localities.  The  more  or  less  well  de- 
fined separation,  now  obtaining  in  one  form  or  another  in  almost 
all  ci\ilized  peoples,  is  a  creation  of  the  later  Middle  Ages  in  Italy 


118  THINGS  [Part  III. 

and  of  modern  codifications.  But  the  further  the  division  of  labor 
progressed  in  occupational  pursuits,  the  more  distinctly  the  middle- 
man's function  of  the  merchant  became  separated  from  other  call- 
ings —  the  greater  became  the  economic  scope  of  this  service,  — 
so  much  the  more  extensive  became  the  body  of  law  specially  appli- 
cable to  it. 

The  distinguishing  feature  of  commercial  law  may  be  sought 
either  in  the  fact  or  in  the  idea ;  i.e.,  we  may  emphasize  either  the 
commercial  fact  (and  incidentally  the  legal  idea  applicable),  or 
we  may  emphasize  and  formulate  the  controlling  legal  principle. 
The  same  group  of  commercial  facts  may  be  governed  by  distinct 
legarrules,  and  vice  versa.  The  distinction  is  illustrated  when  we 
remember  that  in  the  ancient  world  we  owe  the  origin  of  our  com- 
mercial transactions  (in  great  part)  to  the  Babylonians  and  the 
Egyptians,  the  Phoenicians  and  the  Greeks ;  but  it  was  the  Romans 
who  first  gave  them  definite  legal  principles.  So  again,  in  the 
Middle  Ages,  the  various  commercial  methods  and  institutions  were 
contributed  partly  from  the  Germanic  peoples,  partly  from  the 
Orientals,  partly  from  the  inheritance  of  classic  times;  but  they 
received  their  typical  legal  forms  from  the  Romanic  peoples,  es- 
pecially the  Italians.  This  process  of  devising  legal  principles 
and  forms  for  the  commercial  transactions  can  be  traced  from  its 
earliest  beginnings  in  the  annals  of  the  professional  clerks  and 
notaries. 

If,  now,  we  ask,  which  are  the  peoples  whose  contributions  have 
been  the  vital  ones  in  the  continuous  development  of  the  body  of 
universal  commercial  law,  we  may  thus  name  them  in  the  order  of 
their  historical  rise  :  ^  1,2.  The  empires  of  Western  Asia  and  the 
East  Mediterranean,  especially  the  Egyptians  and  the  Phoenicians, 
form  the  great  commercial  region.  The  "merchant"  is  here  pre- 
eminently the  Phoenician,  whose  trading-posts  and  colonies  spread 
even  to  the  Atlantic  shores.  3.  The  Hellenes  gradually  took  over 
the  domination,  in  commerce  as  well  as  in  civilization  generally, 
of  a  large  part  of  both  East  and  West,  and  from  Alexander's  time 
assimilated  to  themselves  the  Orient  more  and  more  markedly. 
4.  The  Romans,  founding  a  world-empire,  brought  it  into  well- 
ordered  mastery  in  about  five  centuries,  and  gave  it  an  ever- 
increasing  unity  of  law. 

^  [The  author  here  eliminates  the  far  Eastern  peoples ;  the  Hindus  and 
the  Persians ;  the  Finns  and  the  Lithuanians  and  Slavic  peoples ;  the 
Kelts;  and  the  early  Americans.  He  then  groups  the  remainder  for  (1) 
ancient  times,  (2)  medieval  times,  (3)  modern  times.  Here  the  descrip- 
tion of  the  first  group  only  is  reproduced.] 


Chap.  XXII.]         ORIGIN   OF   COMMERCIAL   INSTITUTIONS  419 

The  four  great  peoples  of  antiquity  —  the  Egyptians,  the  Baby- 
lonians (and  their  Semitic  relatives,  the  Syrians,  Phoenicians,  etc.), 
the  Greeks,  and  the  Italians,  —  each  (as  Mommsen  says)  in  its 
own  way  built  up  a  civilization  of  its  own  on  a  grand  scale,  and 
helped  in  manifold  relations  to  each  other  to  develop  in  a  well- 
defined  and  ample  way  all  the  elements  of  human  progress,  until 
its  destiny  was  fulfilled.  It  is  a  truism  that  in  economics,  as  in 
legal  life,  innumerable  rivulets  and  springs  unite  to  form  one  great 
stream.  But  the  universal  features  in  the  history  of  this  merging 
were  received  only  from  those  nations  which  were  gifted  with  the 
talent  of  absorbing  and  infusing  these  elements  with  its  own  spirit 
and  of  preserving  and  transmitting  them  to  its  successors.  It  is 
in  this  sense  that  the  economic  and  legal  ideas  of  the  Oriental 
peoples,  of  the  Hellenes,  of  the  Romans,  and  the  Romanic  ^Nlediter- 
ranean  region,  of  the  Germanic  peoples  North  and  West,  may  be 
deemed  universal,  as  well  as  national,  in  their  significance. 

And  yet,  it  remains  to  say,  the  contrast  between  antiquity  and 
modern  times  must  ever  be  kept  in  mind.  In  the  period  between 
ancient  Egypt  in  its  industrial  prime  and  the  1700  s  our  own  era 
—  a  period  of  from  two  to  three  thousand  years  or  so  —  the 
technical  features  of  industrial  life  underwent  no  radical  alteration. 
And  so  also,  for  the  technique  of  commerce  and  commercial  law, 
it  is  equally  true  that  in  the  more  than  fifteen  centuries  that  wit- 
nessed the  successive  predominance  of  Phoenicians,  Hellenes,  and 
Romans,  progress  and  regress  apparently  alternate  in  the  scales, 
without  decisive  gains  maintained.  No  period  of  the  later  ^liddle 
Ages  can  be  named  which  in  all  its  aspects  so  surpasses  the  com- 
mercial life  of  the  ancient  world  at  its  best  period,  especially  that 
of  the  Roman  empire,  that  we  can  speak  of  an  absolute  superiority 
in  commercial  and  legal  type.  It  would  not  be  far  wrong  to  assert 
that  not  until  the  last  two  centuries  of  our  own  era  do  we  find  the 
full  development  of  all  the  principles  which  already  existed  pro- 
fusely in  embryo  for  the  many  thousand  preceding  years  of  com- 
mercial history. 


Chapter  XXIII 

PRIMITIVE  COMMERCIAL  LAW^ 

It  may  be  taken  as  established  by  political  economy  that  the 
most  ancient  commerce  was  of  a  migratory  sort,  and  between 
different  tribes,  or  peoples.^  The  origin  of  commerce,  therefore, 
is  closely  related  to  the  activities  of  peoples ;  and  the  beginning 
of  commercial  law  is  bound  up  with  the  laws  of  peoples  and  inter- 
national law,  as  well  as  the  most  primitive  form  of  international 
law  —  the  law  of  strangers  or  aliens.  It  has  been  rightly  empha- 
sized by  Post  ^  and  other  investigators,^  that  everywhere  on  the 
earth,  it  is  the  first  principle  of  the  law  of  aliens,  that  the  stranger 
has  no  rights  whatever.  "Only  a  relationship  to  a  social  group 
provides  any  guaranties  for  life  and  property."  ^  Therefore, 
between  peoples  who  are  foreign  to  each  other  by  descent  and 
language,  there  is  either  no  communication  at  all,  or  only  inter- 
course of  a  positively  hostile  nature.  Inasmuch,  as  the  death  or 
imprisonment  of  an  alien  is  regarded  not  as  a  wrong,  but  as  a 
praiseworthy  act,^  so  on  a  chance  meeting,  every  person  who  is 
unwilling  to  meet  a  stranger  as  an  enemy,  takes  to  his  heels  as 
speedily  as  possible.^  Yet,  it  would  be  a  mistake  to  suppose  that 
an  utter  absence  of  friendly  communication  among  imcivilized 
peoples,  is  the  rule.  On  the  contrary,  it  may  be  regarded  as 
demonstrated  by  ethnology  and  ancient  history,  that  definite 
beginnings  of  commerce  are  not  incompatible  with  the  lower 
stages  of  culture ;  for  even  among  such  peoples  there  are  found 
"implements  and  adornments  which  have  come  from  thousands 

'  [By  Carl  Koehne,  "Markt-,  Kaufmanns-,  und  Handelsreeht  in  priin- 
itiven  Culturverhaltnissen,"  VI,  in  "Zeitschrift  fiir  Vergleichende  Reehts- 
wissenschaft,"  Bd.  XI  (1895)  pp.  196  seq.;  and  translated  by  Albert 
Kocourek.] 

^SchmoUer,  Jahrb.  XIII,  pp.  10.53-55,  XIV,  p.  1036;  Roscher,  "  System 
der  Volkswirtsehaft,"  III,  See.  16,  pp.  99  seq. 

5  "Aiifgaben,"  p.  38,  "Afr.  Jur.,"  p.   176. 

4  Cf.  FaUafi,  "Z.  f.  d.  ges.  Staatsw.,"  VI  (Tubingen,  1850),  pp.  185, 
201;  bargun,  "  Z.  f.  v.  R.,"  V,  p.  82;    Roscher,  "System,"  III,  p.  111. 

5  Post,  "Afr.  Jur.,"  p.  175. 

^  Cf.  Dargun,  loc.  cit.,  p.  82.  ''  Cf.  Fallati,  loc.  cit.,  p.  175. 

420 


Chap.  XXIII.]  PRIMITIVE    COMMERCIAL   LAW  421 

of  miles."  ^  In  fact,  there  may  be  extensive  commerce  among 
uncivilized  races,  based  on  the  well-known  custom  of  "silent 
trading,"  without  diminishing  the  principle  of  a  lack  of  rights  in 
aliens,  or  the  distrust  which  arises  from  it.  One  party  places 
an  article  at  the  boundary,  or  at  some  other  place  which  is  visited 
by  the  other,  and  withdraws ;  thereupon,  the  other  party  lays 
down,  in  return,  an  article,  which,  however,  is  not  removed  until 
it  corresponds  in  worth  to  the  offer."  An  advance  is  indicated, 
when  the  traders  stand  face  to  face,  but  yet  at  a  distance  which 
makes  violent  acts,  and  especially  seizure  of  the  person,  im- 
possible.^ 

Notwithstanding  the  great  interest  of  these  kinds  of  commerce 
for  ethnology,  they  are  of  no  significance  for  jurisprudence.  On 
the  other  hand,  the  various  ceremonies  by  which  different  un- 
civilized peoples  communicate  their  desire  to  engage  in  friendly 
commerce  are  the  first  germs  of  international  institutions,  and  are 
equally  of  importance  for  the  universal  history  of  law.  For  this 
reason,  such  customs  as  gestures  and  touching  which  express 
friendly  salutation,  the  smoking  of  the  pipe  of  peace,  entertain- 
ment in  the  home,  bearing  of  twigs,  etc.,  are  significant  not  only 
for  [the  evolution  of]  commerce,  but  also  for  such  international 
objects,  as  for  example,  a  treaty  of  peace."^  It  may  be  recalled, 
therefore,  that  the  frequently  attested,  and  even  to-day,  here  and 
there,  existent  custom  of  using  twigs  for  the  purpose  of  giving 
notice  of  the  making  of  commercial  agreements,'^  has  its  origin 
in  the  usage  which  employed  foliage  as  a  token  of  peace.  But 
this  custom  is  not  only  a  "common  Germanic,  and,  presumably, 
a  common  Aryan"  ^  institution  (as  has  recently  been  stated  by 

'  C/.  Schmoller,  Jahrbuch,  XIII,  p.  1053;  Peschel,  "  Volkerkunde" 
(Leipzig,  1885),  pp.  215-6. 

-  Cf.  Schmoller,  loc.  cit. ;  Roscher,  "System,"  III,  p.  112;  ''Z.  f.  allg. 
Erdkiinde"  (Berlin,  1854),  I,  pp.  13-16  (Andree),  and  II,  p.  243  (Gujn- 
precht). 

^  Such  is  the  commerce  of  the  Malays  at  the  southern  point  of  Timor ; 
see  George  Windsor  Earl,  ^'The  Native  Races  of  the  Indian  Archipelago," 
(London,  1853),  p.  183. 

*  Cf.  Fallati,  loc.  cit.,  pp.  201-210.  That  the  smoking  of  the  peace- 
pipe  is  employed  as  a  legal  symbol  for  the  establishment  of  commerce,  is 
observed  by  Lafiteau,  "Moeurs  des  Sauvages  Amerieains"  (Paris,  1724), 
p.  331. 

^  CJ.  Richard  Schroder,  in  Beringuier,  "Die  Rolande  Deutschlands," 
(Berlin,  1890),  pp.  20,  21.  In  addition  to  the  evidence  there  noted,  it 
maj^  be  added  that  in  Vienna,  according  to  an  ordinance  of  1450,  the  public 
criers  of  wine  held  a  branch  in  their  hands — ("Ber.  des  Wiener  Alter- 
thumsv."  Ill,  p.  286)  ;  and  that  even  to-day,  in  Siberian  villages,  the 
vodka  tavern  is  made  known  bv  a  branch  —  (Kennan,  "Siberien"  (trans. 
by  Kirchner,  Berlin,  1890),  p.' 203). 

°  Schroder,  loc.  cit. 


422  THINGS  [Part  III. 

an  eminent  Investigator  of  German  legal  history),  but  has  been 
found  widely  disseminated  among  the  peoples.^  For  the  pur- 
poses of  the  present  study,  the  branch  as  a  symbol  of  peace  comes 
particularly  under  consideration  in  those  ceremonies  in  which  it  is 
used  in  connection  with  other  symbols,  for  commercial  transactions. 
Examples  of  such  legal  symbols  are  found  in  various  books  of 
travel.  When  Captain  von  Kotzebue,  on  his  well-known  voyage 
of  discovery,  was  nearing  the  Penrhyn  Islands  in  Polynesia,  va- 
rious boats  of  the  natives  approached  his  ship,  and  in  each  of  the 
larger  boats  an  old  man  adorned  with  a  chaplet  of  palms  in  his 
hair,  and  a  neck-piece  of  cocoa  leaves,  held  aloft  a  palm  branch. 
When  the  boats  came  within  20  fathoms  of  the  ship,  they  stopped, 
and  the  islanders  commenced  a  peculiar  song.  After  the  natives 
had  completed  these  ceremonies,  they  came  without  fear  to  the 
ship,  and  showed  themselves  ready  to  engage  in  barter. ^  In 
a  similar  way,  the  natives  of  Noatka  Sound  on  the  North-west 
coast  of  America  [Kotzebue  Sound(?)l  rowed  around  the  ship  of 
Cook,  "while  on  each  ship  a  man  provided  with  a  mask  spoke  or 
called  out  a  long  time."  When  the  circling  of  the  ship  was  com- 
pleted, the  boat  laid  alongside  of  the  ship,  and  then  the  natives 
began  to  barter.^  The  Brazilian  Indians  also  have  a  special 
legal  symbol  for  the  initiation  of  commercial  transactions.  They 
lay  down  "  their  arms  in  common,  and  alongside  of  one  another ; 
and  when  the  transaction  is  completed,  which  is  indicated  by 
certain  words  frequently  repeated  on  both  sides,  both  parties 
at  the  same  moment  seize  their  weapons."  ^  There  we  have  one 
of  the  many  cases  where  a  legal  solemnity  is  at  the  same  time  a 
legal  symbol.^  The  laying  down  and  taking  up  of  the  weapons, 
in  order  that  the  possibility  of  attack  may  be  made  more  difficult 
and  lessened,  signifies,  (in  that  both  acts  are  simultaneous  on 
both  sides),  the  renunciation  of  malevolence,  and  notice  of  it. 
It  is  noteworthy,  that  here  the  peaceable  situation,  so  far  as  it 
may  be  inferred  from  the  legal  symbolism,  exists  only  during  the 
continuance  of  the  legal  transaction ;  the  same  persons  who  for 
the  time  being  mutually  grant  peace,  may,  on  meeting  again, 

'  Especially,  also,  among  the  Australians,  and  South  Sea  Islanders ; 
cf.  Waitz-Gerland,  ''Anthropologie,"  VI,  p.  750;  Ratzel,  "Volkerkunde," 
II  (Lpz.,  1886),  p.  210;    Fallati,  loc.  cit.,  pp.  180-1. 

^  Von  Kotzebue,  ^'  Entdeckungsreisenach  der  Siidsee  und  naehBeringstr." 
(Weimer,   1821),  I,  p.   124. 

^  Cook's  "Third  Voyage  of  Discovery"  (trans,  by  G.  Forster)  (Berlin, 
1789),  III,  pp.  12,  13,  "18,  19. 

^  Von  Martins,  "Von  dem  Reehtszustande  unter  den  Einwohnern 
Brasiliens"  (Munich,  1832),  p.  44. 

^  CJ.  Heusler,  "Inst.  d.  deut.  Privatrechts.,"  I,  p.  72. 


Chap.  XXIII.]  PRIMITIVE    COMMERCIAL   LAW  423 

consider  each  other  as  enemies.  On  the  contrary,  the  ceremonies 
above  described,  of  the  natives  of  Noatka  Sound,  appear  to  indi- 
cate a  permanent  peace  between  the  parties.  When  Cook  con- 
tinued trading  the  next  day  with  the  natives,  the  same  ceremonies 
were  performed  only  by  the  occupants  of  such  boats  as  had  come 
to  the  ship  the  first  day.^ 

As  a  rule,  primitive  law  has  another  method  for  making  perma- 
nent trade  possible;  some  important  societies  have  taken 
the  foreign  merchant  under  their  special  protection.  Such 
relations  are  found  developed,  quite  conspicuously,  among 
various  peoples  of  East  Africa.  Reference  may  especially  be 
made  to  the  so-called  "  Ashkerays,"  subjects  of  the  Naib  of  Samhar, 
who  regularly  visit  the  land  of  the  Bogos  for  commercial  pur- 
poses.^ Each  "Ashkeray"  chooses  among  the  Bogos  a  protector 
to  whom  he  pays,  by  custom,  yearly,  a  moderate  sum  of  money. 
The  protector  is  obligated  to  receive  the  "Ashkeray"  at  his  home, 
to  furnish  his  board  for  the  first  day,  to  assist  him  in  his  business, 
and  especially  in  the  collection  of  his  claims,  and  he  must  also 
furnish  him  safe  escort  to  the  next  tribe.  If  the  "Ashkeray"  is 
killed  while  in  Bogoland,  then  the  master  has  the  right  of  blood- 
revenge.  If  he  prefers  .to  take  weregild,  the  same  as  for  a  Bogo, 
then  he  may  keep  the  entire  amount  for  himself ;  yet,  he  usually 
turns  over  a  part  of  it  to  the  relatives  of  the  dead  man.^  Similar 
protective  relations  are  found  developed  among  other  African 
peoples ;  thus  among  the  Wogo-Galla,  the  Somali,  the  Barea  and 
Kumana ;  and  such  a  relation  is  the  only  measure  of  safety  for 
life  and  property  of  strangers  in  the  markets  in  Berbera  and 
Massua.^  Among  the  Kumanas  the  stranger  must  always  be 
accompanied  by  a  native;  otherwise  he  would  be  considered  an 
enemy  and  killed.'' 

The  most  complete  information,  in  detail,  concerning  the  pro- 
tective relation  among  merchants  comes  from  Somaliland ;  and 
it  may  be  accepted,  that  in  the  essential  features,  it  is  the  same 
there  as  among  the  peoples  already  mentioned.     Protector  and 

'  Cook,  op.  cit.,  p.  18. 

-  Munzinger,  '''Das  Reeht  der  Bogos"  (Winterthur,  1859),  p.  46,  Nos. 
72-75. 

^  Munzinger,  op.  cit. 

^  Cf.  Krnpf,  "Reisen  in  0.stafrika"  (Kornthal  u.  Stuttg.,  1858),  p.  106; 
Burton,  "First  Footsteps  in  East  Africa"  (London,  1856),  p.  89  seq.; 
Haggenmacher,  in  Peterniann's  "Mitth.  Erganz.,"  X,  No.  47,  pp.  36,37; 
Hildebrand,  in  "Verb,  der  Ges.  f.  Erdkunde  zu  Berlin,"  1874,  p.  274; 
Munzinger,  "Ostafr.  Studien"  (Schaffh.,  1864),  pp.  121,  314,  315,  477; 
further.  Post,  "Afr.  Jur.,"  I,  p.  177;    Aridree,  "  Welthandel,"  p.  213. 

*  Munzinger,  op.  cit.,  p.  477. 


424  THINGS  [Part  III. 

protectee  are  called  by  the  Somalis  "Abban"  ;^  yet  it  is  allowable 
according  to  the  usage  of  books  of  travel  to  apply  the  term  solely 
to  the  protector.  The  protective  relation  is  created  by  an  ex- 
change of  gifts ; "  and  with  this,  the  merchant  also  permits  the 
"Abban"  to  fortify  the  security  of  the  relation  by  an  oath.^ 
Protection  consists  in  defence  against  all  hostile  attacks  on  the 
traveler  and  his  property  proceeding  as  well  from  the  protector's 
tribesmen  as  from  non-tribesmen.  Furthermore,  the  "Abban" 
is  the  representative  of  the  merchant  before  the  courts.  Finally, 
he  furnishes  him  with  a  residence  and  subsistence,  serves  him  as 
interpreter,  and  negotiates  his  business  affairs,  or  executes  them 
in  his  own  name  as  commissioner.^  This  office,  called  "el 
Tabaan,"  is  bound  up  with  unlimited  power  over  the  life  and 
property  of  the  stranger ;  so  that  he  is  entirely  dependent  on  his 
"Abban."  ^  For  this  service,  the  "Abban"  receives  a  courtage, 
fixed  by  customary  law,  upon  all  the  business  done  by  the  client, 
whether  he  took  part  in  it  or  not,^  and  occasionally  other  com- 
pensation.^ The  relation  ends  as  soon  as  the  merchant  leaves 
the  tribal  territory  of  the  patron  ;  and,  also,  as  a  rule,  on  the  death 
of  one  of  the  parties.  Yet,  it  is  reported  of  the  vSomalis,  that  if 
the  patron  is  killed,  it  becomes  the  duty  of  his  kin  to  assume  the 
undertaking  of  protection,  and  to  assist  the  merchant  in  getting 
his  goods,  which,  perchance,  are  out  of  his  reach.^  If  the  relation 
is  terminated  by  reason  of  the  killing  of  the  merchant,  it  may  be 
assumed  that  among  all  these  peoples,  the  protector  becomes 
vested  with  the  right  of  blood-revenge.^  Among  the  Barea  and 
Kumana  tribes,  this  right  is  employed  in  such  manner  that  the 
protector  of  the  murdered  man  kills  a  client  of  the  murderer. ^° 
As  to  most  peoples,  there  is  no  information  whether  the  protective 
relation  may  be  ended  by  the  will  of  one  of  the  parties.  It  is 
reported  only  of  the  market  in  Berbera  in  Somaliland,  that  there, 
no  one  may  change  his  "Abban"  without  the  approval  of  the 
judicial    assembly. ^^    On    the    contrary,    among   the  Bogos   the 

'  Burton,  op.  cit.,  p.  89,  note. 

-  Haggenmachcr,  op.  cit.,  p.  32.  ^  Ibid.,  pp.  7,  8. 

*  Cf.  esp.  Haggenmacher,  op.  cit.,  p.  36;    Munzinger,  op.  cit.,  p.  121. 
5  Burton,  op.  cit.,  p.  89,  note. 

^  Haggenmacher,  op.  cit.,  p.  37. 

Mn  the  market  at  Berbera,  the  "Abban"  has  a  claim  secured  by- 
customary  law  to  a  garment  of  16  ells  of  calico  for  each  ship  which  arrives 
belonging  to  the  client.  Furthermore,  when  the  merchant  leaves  the 
market,  the  "Abban"  has  a  claim  to  the  timbers  of  the  hut  erected  by  the 
merchant  at  the  market;    cf.  Haggenmacher,  op.  cit. 

*  Burton,  op.  cit.  "  Cf.  note  3,  p.  423,  supra. 

1"  Munzinger,  op.  cit.,  p.  477.  "  Haggenmacher,  op.  cit.,  p.  37. 


Chap.  XXIII.]  PRIMITIVE    COMMERCIAL    LAW  425 

"  Ashkeray"may  change  his  protector  at  will.^  The  Information 
is  given,  that  this  protective  relation  is  of  no  value  to  the  merchant, 
unless  he  selects  an  honest  and  skillful  patron  who  is  well  regarded 
in  his  tribe ;  yet,  frequently,  unqualified  persons  present  them- 
selves for  this  office,  to  foreign  merchants.^  The  English  traveler, 
Burton,  therefore,  in  185G,  proposed  to  establish  a  list  of  the  best 
"Abbans"  in  Somaliland.^ 

The  statement,  here,  of  this  point,  is  not  to  be  regarded  as 
superfluous,  since  in  connection  with  the  information  afforded 
regarding  the  protective  relation,  it  throws  a  strong  light  on  the 
legal  evolution  of  the  institution  of  brokerage,  in  legal  circles 
different  from  that  of  the  Somalis.  ^^^lat  Burton  proposed  in 
1856  for  Somaliland  was  actually  done,  to  a  certain  extent,  in 
1864  in  Massua.  Here,  an  exclusive  class  of  persons,  the  so-called 
"Nesil,"  who  serve  the  merchants  as  patrons,  hosts,  and  com- 
missioners, dominate  the  market  to  such  an  extent  that  it  would 
be  "foolish"  to  expect  "to  engage  them  only  as  agents"  for  the 
purpose  of  cutting  down  their  high  courtage.'*  In  another  locality, 
where  the  function  of  host  and  broker  is  identical,  among  the 
south  Arabians,  these  persons  (dallal)  constitute  a  special  guild 
under  self-chosen  directors ;  here  the  restrictions  on  the  office  of 
broker  have  gone  so  far  as  to  limit  the  exercise  of  this  calling  to 
sons  of  brokers.^ 

These  facts  may  now  be  considered  with  reference  to  the  de- 
velopment of  Germanic  law.  Here,  also,  at  first,  the  stranger 
had  no  rights,  and  only  the  usages  of  hospitality,  which  the  host 
observed  with  reference  to  his  "patronus"  or  "senior,"  was  able 
to  secure  him  protection  for  life,  liberty,  and  goods. ^  That 
influential  persons  furnished  hospitality  to  merchants  is  attested 
at  least  among  the  north  Germans.  It  is  to  be  remarked,  how- 
ever, that  hospitality  was  not  given  to  merchants  for  nothing,  as 
to  other  persons,  but  only  for  compensation  in  goods  or  money .'^ 

'  Munzinger  (Bogos),  p.  46,  No.  72.  -  Burton,  op.  cit.  '  Ihid. 

*  Munzinger,  "Ostafr.  St.,"  p.  121.  The  absence  of  differentiation, 
sharply  defined  in  our  law,  between  the  concept  factor  and  broker, 
is  not  attributable  to  a  deficiency  of  legal  knowledge  of  the  informant. 
As  a  matter  of  fact,  it  is  easy  to  understand  that  the  same  persons  who 
negotiate  business  affairs  with  their  own  people,  in  many  cases  also  exe- 
cute the  business  of  strangers  in  their  own  names.  First,  only,  with  the 
appearance  of  the  sworn  broker  in  Islamitic  law,  and  among  the  Germanic 
and  Roman  nations,  is  a  clear  distinction  seen  between  the  functions  of 
the  broker  and  factor. 

^  Cf.  Van  den  Berg,  "Le  Hadhramount"  (Batavia,  1886),  p.  74. 

^  H Busier,  "Inst.,'"  I,  p.  144;  Schroder,  "D.  R.  G.,"  pp.  37,  72,  n.  7, 
p.  323. 

^  Cf.  Weinhold,  "Altnord.  Leben"  (Berlin,  1856),  p.  450. 


426  THINGS  [Part  III. 

For  the  rest,  it  may  be  said  that  analogous  relations  corresponding 
to  the  same  phase  of  culture  of  other  peoples  developed,  so  that 
frequently  the  same  person  was  the  protector,  host,  business 
intermediary,  and  interpreter  of  the  alien  merchant.^  From 
the  time  that  a  kingly  protection  of  strangers  grew  up,^  this 
protection  became  limited  in  effect  to  support  by  testimony  in 
the  courts.  This  was  usually  provided  for  by  inviting  the  agent 
to  join  in  the  customary  drink  ^  with  which  a  transaction  was 
closed,  whereby  the  agent  became  a  witness  to  the  business  in 
question.  It  appears,  also,  that  improper  inducements  entered  to 
require  the  foreign  merchant  to  rely  on  a  business  agent.  In  any 
event,  the  laws  regulating  commerce  in  the  period  from  the  11th 
to  13th  century  —  the  regulations  conferring  commercial  privileges 
on  foreigners,  as  well  as  domestic  Stadtrecht,  which,  for  the  greater 
part,  designated  as  competent  business  agents,  the  "Unter- 
kaufer"  or  "Litkaufer,"  ■* — ^  were  unfavorable.  Their  testimony 
w^as  admitted  only  in  unimportant  matters,  or  when  it  agreed 
with  that  of  persons  of  consequence.^  Or,  only  those  agents 
were  competent  to  testify,  who  were  also  hosts  of  the  stranger.^ 
Again,  there  were  regulations  which  made  their  testimony  wholly 
incompetent ;  and,  here  and  there,  remunerated  agency  was 
entirely  prohibited.^      Yet,  at  the  same  time,   men  preferred  to 

1  Cf.  Pappenheim  in  "Z.  f.  Handelsrecht,"  XXIX  (1884),  pp.  440-444. 
He  points  out  that  among  the  north  Germans  those  who  served  strangers 
as  brokers  or  commissioners,  were  also  frequently  called  interpreters 
(Dolmetscher).  See,  further,  Schmoller,  "I'Strassb.  Tueher-  und  Weber- 
zunft"  (1881),  p.  78,  concerning  the  connection  between  the  function  of 
host  and  business  agent  for  aliens  ;  and  Ehrenbergin  "Z.  f.  Handelsrecht," 
XXX,  p.  414  seq.,  concerning  membership  of  the  "Hostellers"  in  Brugge 
in  the  guild  of  brokers,  and  the  natural  relation  between  these  callings. 

2  Cf.  Heusler,  ''Inst.,"  I,  p.  145. 

^  Cf.  Schroder,  "D.  R.  G.,"  p.  54;  Grimm,  "Deutsche  Reehtsalter- 
thiimer,"  p.  191. 

^  Example  of  such  provisions  will  be  foimd  in  the  citations  entered 
below;  also  in  Goldschmidt  in  "Z.  f.  Handelsrecht,"  XXVIII,  p.  118. 
The  term  "  Unterkauf er "  shows  that  in  Germany  a  business  agency  for 
aliens  was  connected  with  the  termination  of  a  business  in  the  agent's  name 
for  account  of  the  alien.  The  origin  of  the  term  "Litkaufer,"  however, 
is  as  follows  :  on  the  conclusion  of  a  transaction  where  performance  still 
remained  to  be  made,  a  light  repast  was  served  to  which  the  agent  was 
invited.  At  first,  there  was  used  a  home-made  wine  (lit) ;  therefore  the 
transaction  was  also  called  litkouf.  Cf.  Schroder,  "D.  R.  G.,"  and  also 
my  " Hansgraf enamt "  (1893),  p.  58,  note  75. 

^  Cf.  "Wiener  Stadtrechtsbch.,"  art  110  (ed.  Schuster,  Vienna,  1873), 
p.  106 ;  Stdr.  Leopold  VI  for  Vienna  c.  21  (Rechtsquellen  der  Stadt 
Wien,  1877,  Bd.  I,  p.  13). 

« Ibid.,  I,  p.  2. 

^  Cf.  the  examples  given  by  Laband  in  "Z.  f.  deutsehes  Recht,"  Bd. 
XX  (1861),  p.  24,  notes  65,  66;  also  "Bremisches  Urkundenbuch " 
(1873),  I,  p.  142. 


Chap.  XXIII.]  PRIMITIVE   COMMERCIAL   LAW  427 

swear  in  to  a  faithful  performance  of  his  duties  an  "  Unterkauf er " 
of  good  report,  and  avoided  giving  the  function  of  business  agency 
to  others.^  In  this  manner,  the  institution  of  the  sworn  broker 
arose  in  Germany.  It  did  not  proceed  from  the  authentication 
of  officers  commissioned  in  commercial  matters,  which  first  con- 
cerned itself  with  business  agency  per  abusum.-  Neither  is  its 
origin  attributable  to  a  reception  of  Italian  commercial  law ; 
since  this  law  itself  adopted  the  notion  of  the  "Sensale"  [licensed 
broker]  from  Oriental  commercial  u.sages.'^  Here,  as  elsewhere, 
the  same  necessity  has,  in  an  entirely  dift'erent  locality,  brought 
forth  a  similar  institution.  Thus,  it  is  possible  to  supph'  the 
vacancies  in  the  evolution  of  this  important  commercial  institu- 
tion in  German  legal  history,  by  comparison  of  related  forms  in 
entirely  foreign  countries. 

The  same  is  true  with  respect  to  the  origin  of  the  market  law 
of  the  jMiddle  Ages.  Eminent  investigators  represent  the  view 
that,  primarily,  Germanic  market  law  must  be  referred  to  the 
King's  Peace  which  has  a  connection  with  Market  Peace.'*  But, 
if  the  notion  is  permitted  to  assert  itself,  that  economic  necessi- 
ties must  be  considered  as  peculiarly  decisive  of  these  questions, 
then  it  will  seem  probable  that  a  special  IMarket  Peace  has  existed 
even  among  peoples  not  living  under  a  monarchical  constitution. 
Indeed,  originally,  the  market  did  not  involve  territorial  power,  and 

1  See  examples  in  Schmoller,  "Strassb.  Tueher-  und  Weberzunft," 
p.  78,  n.  2,  and  Gengler,  " Stadtreehtsalterthiimer "  (Erlangen,  1882), 
p.  464,  n.  48.  Since  it  was  desired,  in  the  interest  of  other  merchants, 
not  to  give  the  sworn  broker  an  actual  legal  monopoly  in  the  consumma- 
tion of  the  affairs  of  strangers,  it  was  necessary  at  the  same  time  to  pro- 
hibit them  from  executing  a  transaction  in  their  own  names.  Thus  is 
explained  the  prohibition  considered,  as  an  essential  in  the  legal  concep- 
tion of  the  sworn  broker,  and  also  the  complete  separation  of  this  function 
from  that  of  the  factor.  Cf.  Laband,  oc.  cit.  (note  7,  p.  426),  pp.  25,  26, 
and  the  parallel  in  Islamitic  law  (note  3,  below). 

2  As  is  well  known,  Laband  represents  this  view  (see  note  7,  p.  426), 
which  is  followed  by  Struck,  "Die  Effectenborse"  (Lpz.,  1881),  pp.  188-9. 

^  One  might  erroneously  arrive  at  this  notion  from  the  article  above 
cited  (p.  426)  of  Goldsehmidt.  Yet,  it  will  appear  from  the  discussion, 
taken  in  connection  with  Goldschmidt's  sources,  that  there  was  an  extraor- 
dinary similarity  of  development  with  reference  to  the  commercial  broker 
in  German,  Italian,  and  Islamitic  law.  Touching  the  last,  compare,  also, 
Behrnauer,  "Memoires  sur  les  institutions  de  police  chez  les  Arabes" 
(Paris,  1861),  p.  187.  According  to  this  work,  in  the  states  of  Islam  in 
the  13th  century,  brokers  were  nominated  and  controlled  by  the  Chief 
of  Police  (Muhtasib).  They  were  rigidly  prohibited  from  doing  business 
on  their  own  account. 

*  Sohm,  "Entstehung  des  deutschen  Stadtewesens"  (Lpz.  1890),  and 
Kuntze,  "Die  deutschen  Stadtgriindungen "  (Lpz.,  1891).  The  latter 
even  attempts  to  prove  that  market  freedom  first  arose  out  of  kingly  munic- 
ipal peace  which  itself  is  referable  to  Roman  connections ;  c/.  my  recen- 
sion of  the  book  in  "Z.  f.  v.  R." 


428  THINGS  [Part  III. 

the  market  visitors  themselves,  in  the  beginning,  provided  for  the 
maintenance  of  the  Market  Peace.  The  marketers  were  not  united 
in  any  kind  of  association  except  the  interest  of  maintaining  the  peace. 
Thus,  by  way  of  example,  in  central  Africa,  periodical  market- 
days  are  held  "on  neutral  territory  in  the  heart  of  the  primitive 
forest."  The  otherwise  hostile  tribes,  the  Boluas,  Balubas,  and 
Baketes,  meet  here  together  in  amity. ^  In  Bogelo  in  the  northern 
part  of  East  Africa  a  daily  market  is  held  in  a  large  inclosed 
place  outside  the  village.  This  place  is  regarded  as  neutral,  and 
not  as  belonging  either  to  the  inhabitants  of  the  village  or  to  the 
other  visiting  tribes.^  Various  North-American  Indian  tribes 
also  met  in  market  commerce  at  a  place  on  the  INIississippi,  re- 
garded as  neutral  territory.^  Furthermore,  ancient  mythology 
points  out  similar  conditions  in  the  founding  of  European  peoples. 
At  any  rate,  two  eminent  investigators,  Lubbock  and  IMaine, 
explain  the  well-known  fact  that  the  Helleno-Italic  god  Hermes 
or  Terminus  was  at  once  the  god  of  boundaries  and  merchants, 
by  the  circumstance  that  markets  in  these  places,  at  first,  were 
held  on  neutral  territory.'*  Finally  an  institution  of  the  Kabyles, 
among  whom,  notwithstanding  the  acceptance  of  Islam,  many 
primitive  legal  establishments  maintained  their  integrity,^  is 
of  the  highest  importance  for  the  question  of  the  origin  of  JNIarket 
Peace.  Although  there  these  markets  were,  as  a  rule,  subject 
to  the  power  and  regulation  of  a  definite  tribe,^  yet  punishment 

1  Ludwig  Wolf,  in  "Z.  f.  Ethnol.,"  XVIII  (188G),  p.  726. 

2  Munzinger,  "Ostafr.,"  p.  519. 

'  Carver,  "Travels  through  the  Interior  Parts  of  North  America" 
(London,  1778),  p.  99.  In  connection  with  these  observations  it  is  shown 
by  Klemm,  "Allg.  Cultiirgesch.,"  II,  p.  133,  and  after  him  bj'  Kulischer, 
p.  382,  that  similar  legal  customs  existed  among  the  Indians  of  Chili. 
Here,  the  market,  however,  is  for  the  Indians  and  Whites ;  cf.  Poppig, 
"Reise  dureh  Chile,"  etc.  (hpz.,  1835),  p.  377.  On  the  other  hand, 
reference  may  be  made  to  the  declaration  of  peace  in  the  market  assem- 
blies of  Guzula  on  the  West  African  coast.  Yet,  of  course,  the  tradition 
for  this  fact,  for  Avhich  Kulischer,  loc.  cit.,  gives  Bastian,  "Rechtsv.  bei 
verschiedenen  Volkern"  (Berlin,  1872),  p.  Ixix,  n.  63,  as  authority, 
is  little  to  be  relied  upon,  since  it  is  separated  by  a  period  of  nearly  two 
centuries  from  the  occurrence  reported. 

*  Lubbock,  "Origin  of  Civilization,"  2d  ed.  (London,  1870),  p.  220; 
Maine,  "Village  Communities"  (London,  1876),  pp.  192-3.  It  is 
noteworthy  that  Maine  reconciles  the  fact  that  Hermes  was  also  god  of 
thieves,  with  the  speedy  conviction  and  severe  punishment  of  thefts 
committed  in  the  market ;  while  this  fact  had  frequently,  and  erroneously 
as  well,  been  explained  as  resting  on  the  small  trust  put  in  the  honesty  of 
merchants;    cf.,  for  example,  Roscher,  "System,"  III,  p.  67,  n.  14. 

^  Cf.  Hanoteau  and  Letourneux,  "LaKabylie  et  les  coutumes  Kabyles," 
(Paris,  1872),  II,  p.  135  seq. 

^  Ibid.,  II,  p.  78  seq.  Sometimes,  also,  two  tribes  establish  a  common 
market,  and  exercise  in  common  the  right  of  control  over  it  (ibid.,  II, 
p.  78). 


i 


Chap.  XXIII.]  PRIMITIVE    COMMERCIAL   LAW  429 

for  violations  of  ^Market  Peace  was  inflicted,  frequently  in  the 
most  primitive  way,  by  the  marketers  themselves.^  ^^^len 
anyone  calls  out  that  a  murder  has  been  attempted,  or  theft,  or 
an  imposition  committed  against  the  peace  of  the  market,  then 
all  the  bystanders  attempt  to  stone  the  real  or  supposed  culprit. 
The  market  master  of  the  tribe  having  the  control  of  the  market, 
as  a  rule,  exerts  himself  to  save  the  accused  from  this  kind  of 
justice.  Sometimes  he  succeeds,  and  then  the  accused  is  tried 
by  judicial  procedure.  Of  course,  the  market  master  desists 
at  once  in  his  attempt  to  rescue  the  culprit,  if  he  regards  him  as 
guilty,  or  thinks  it  improper  to  defend  him.  If  the  accused  is 
a  person  of  influence,  then  his  friends  intervene,  and  the  market 
becomes  the  field  of  a  bloody  fight.^  Thus,  this  method  of 
securing  ^Market  Peace  by  instantaneous  blood  punishment  of 
all  disturbances,  is  the  most  primitive  and  completest  method 
of  securing  peace. 

These  customs  conspicuously  suggest  the  most  ancient  legal 
conditions  known  of  the  Greeks  and  Germans.  Here,  in  the 
beginning,  public  criminal  justice  was  limited  to  "intervention 
by  the  public  as  to  offenses  of  special  evil."  But  then  the  "com- 
munity did  not  proceed  by  way  of  a  defined"  procedure,  but 
acted  as  an  "unregulated  mob  assisting  the  person  injured  in 
self-help"  or  considered  it  a  duty  to  destroy  the  person  who  had 
set  himself  in  opposition  to  the  institutions  of  peace,  the  same  as 
if  he  were  a  wild  beast.^ 

Concerning  protection  of  the  jNIarket  Peace  by  the  visitors  to 
the  market,  which,  of  course,  is  brought  about  in  a  different  way, 
we  also  have  information  from  Berbera.  There,  if  a  stranger 
is  murdered,  the  merchants  all  go  away,  and  do  not  visit  the 
place  again  until  full  settlement  of  the  blood  debt  is  made  with 
the  heirs  of  the  murdered  person.^ 

Also,  when  breaches  of  the  INIarket  Peace  are  not  disciplined 
by  the  market  traders,  by  an  immediate  blood  punishment, 
and  regular  measures  govern  such  cases,  even  to-day,  in  primitive 
countries,  as  in  Germany  in  the  ^Middle  Ages,  the  same  crime 
is  more  severely  punished  if  committed  at  the  market  than  out- 
side the  market.  For  instance,  the  local  customary  usages  and 
statutes  of  the  Kabyles,  as  a  rule,  provide  for  severer  punishment 

1  Ibid.,  II,  p.  81  ;    III,  302  seq. 

2  Ibid.,  Ill,  p.  304  seq. 

'  Cf.  Bcrnhoff  in  "Z.  f.  v.  R.,"  I,  p.  7 ;  Bninner,  "Z.  d.  Sav.-Stft. 
Oerm.  Abth.,"  XI  (1890),  pp.  63,  64. 

*  Haggenmacher,  loc.  cit.  (see  note  4,  p.  423  supra),  p.  37. 


430  THINGS  [Part  III. 

of  offences  committed  at  the  market,  in  providing  for  the  juris- 
diction of  the  market-master.  Theft  is  punished  not  only  by 
the  customary  money  penalty,  but  also  by  the  disgraceful  discipline 
of  burning  the  clothing  and  cutting  the  beard  of  the  culprit.^ 
It  is  especially  worthy  of  remark,  that  among  the  Kabyles  the 
visiting  stranger  is  considered  as  under  the  protection  (anaia) 
of  the  tribe  to  which  the  market  belongs,  not  only  while  he  is 
visiting  the  market,  but  also  in  going  and  returning.-  Offences 
against  ^•isitors  going  or  returning  from  the  market  receive  the 
same  punishment  as  if  committed  at  the  market ;  and  such  of- 
fences have  frequently  provoked  bloody  quarrels  among  the 
Kabyle  tribes  when  the  home  tribe  of  the  delinquent  has  refused 
to  deliver  him  up  to  the  market  authorities.^  In  the  market  of 
Berbera,  also,  breaches  of  Market  Peace  are  more  severely  pun- 
ished. If  the  peace  is  broken  by  a  quarrel  in  the  market-place, 
both  sides  must  pay  a  penalty  fixed  by  the  common  assembly 
of  the  home  tribe.  All  grosser  offences  are  punished  by  death. ^ 
Wlien  a  dispute  arises,  the  parties  at  once  withdraw  from  the 
market-place,  and  at  some  distance  from  the  market,  end  the 
quarrel  —  often  with  knives  and  daggers.^ 

In  addition  to  severer  punishments  for  crimes  committed  at 
the  market,  the  Market  Peace  also  extends  to  give  immunity,  to 
those  present  at  the  market,  for  previous  offences.  In  Berbera, 
no  one  may  take  blood-revenge  at  the  market ;  ®  and  in  the 
markets  of  the  Kabyles  any  killing  by  way  of  blood-revenge  is 
treated  on  the  part-  of  the  market  associates  in  the  same  way  as 
any  other  crime.''  If  a  merchant  in  Berbera  recognizes  goods 
put  up  for  sale  as  having  been  taken  from  him  by  robbery,  he  may 
not  even  so  much  as  make  claim  to  them  against  the  robber.* 
In  the  market  in  America,  to  which  reference  has  been  made,' 
hostile  tribes  associate  together  on  terms  of  peace. 

The  markets  which  have  been  so  far  considered  are  all  either 
held  in  neutral  territory  or  concern  peoples  still  living  under  a 
primitive  clan  constitution.  If  we  find,  under  these  conditions,  a 
Market  Peace  with  all  the  essential  attributes  already  developed, 

1  Hanoteau  and  Letourneux,  III,  p.  303. 

2  Ibid.,  Ill,  pp.  108-9.  The  same  custom  extending  market  protec- 
tion to  the  coming  and  going  of  market  visitors  is  well-known  in  German 
law;    cf.  Waitz,  "Deutsche  Verfassungsgesch.,"  VII,  pp.  378-9. 

'  Hanoteau  and  Letourneux,  III,  p.  109. 

*  Haggenmacher,  p.  37.  ^  Burton,  op.  cit.  (note  4,  p.  423  supra). 
^  Haggenmacher,  p.  37. 

'  Cf.  Hanoteau  and  Letourneux,  III,  p.  303. 

*  Haggenmacher,  p.  37.  ^  Carver  (see  note  3,  p.  428  supra). 


Chap.  XXIII.]  PRIMITIVE   COMMERCIAL    LAW  431 

it  seems  incorrect,  therefore,  to  refer  it  to  a  people  with  a  monar- 
chical constitution  —  where  a  special  peace  obtains  near  the 
king,^  and  where  at  the  market  the  king's  presence  is  fictitiously 
assumed.^  When  the  market  is  altogether  under  territorial 
authority,  then  so  long  as  the  clan  constitution  ^  prevails,  the 
village  community  maintains  the  peace  of  the  market  and  collects 
the  revenues  therefor,  but  as  soon  as  a  competent  kingly  power 
arises  with  the  rudiments  of  state  organization,  then  the  main- 
tenance of  peace  and  the  revenues  appertain  to  it. 

It  has  already  been  pointed  out,  that  in  Berbera  the  common 
assembly  fixes  the  penalties  for  the  lesser  offences  against  the 
Market  Peace,  and  that  the  consent  of  this  authority  is  necessary 
in  order  that  an  "Abban"  may  be  changed.'*  This  assembly 
also  has  jurisdiction  over  capital  crimes,  and  levies  on  each  moor- 
ing vessel  a  definite  money  tax.^  It  consists  of  all  male  adult 
members  of  the  Somali  tribe,  Rer  Achmet  Noh ;  in  which  tribe 
only  those  persons  are  regarded  as  adults  who  have  killed  an 
enemy .^  At  Emberria,  also,  in  the  land  of  the  Wanikas  in  East 
Africa,  the  village  community  is  the  protector  of  the  Market 
Peace  ;  it  receives  the  oath  of  the  captains  of  the  visiting  caravans 
that  they  will  respect  the  peace.^  As  has  already  been  observed, 
the  markets  of  the  Kabyles  are  subject  to  the  authority  of  a  definite 
tribe,  which  selects  the  master  of  the  market,  fixes  the  punish- 
ments for  breaches  of  the  Market  Peace,  and  regards  all  visiting 
strangers  at  the  market  as  under  its  protection.  The  market- 
master,  however,  is  vested  only  with  police  and  criminal  juris- 
diction.^ When  disputes  ari.se  in  civil  matters,  the  parties  resort 
to  the  "Aiem"  (the  sage)  of  the  market,  a  Marabout  (priest) 
who  resides  at  some  distance  from  the  market.^  He,  likewise, 
is  appointed  by  the  tribe  which  controls  the  market ;  but  every 
visiting  Marabout  may  claim  the  privilege  of  participating  in 
the  judgment,  with  an  advisory  voice. ^°  The  jurisdiction  of  the 
Alem  is  not,  however,  exclusive ;    the  parties  may  resort  to   a 

■  The  same  phenomenon  is  found,  moreover,  in  German  and  Anglo- 
Saxon  law,  also  in  Celtic,  Polish,  Chinese,  and  ancient  Peruvian  law ; 
cf.  Post,  "Bausteine,"  II  (Oldenb.,  1881),  p.  249. 

2  The  view  of  Sohm  (see  note  4,  p.  427,  supra). 

^  Thus  appropriately  called  by  Post  ('''Aufgaben,"  p.  38),  to  distin- 
guish it  from  conditions  when  there  appear  the  rudiments  of  a  state  con- 
stitution in  which  "a  people  lives  in  a  small  community  essentially  inde- 
pendent of  others,  or  connected  with  others  only  by  agreement." 

*  See  above,  p.  424.  »  Haggenmacher,  p.  37.  « Ibid.,  p.  36. 

^  Krapf,  pp.  273-4. 

^  Hanoteau  and  Letourneux,  II,  pp.  80-1. 

» Ibid.,  p.  82.  10  jbid,,  III,  p.  37. 


432  THINGS  [Part  III. 

referee ;  and  when  they  are  from  the  same  village,  they  may  take 
the  law  of  the  home  court. ^  On  the  other  hand,  disputes  may 
be  adjudicated  before  the  Alem,  of  matters  not  originating  at  the 
market.^ 

The  procedure  is  usually  brief.  The  plaintiff  and  defendant 
speak;  the  witnesses  are  heard,  who  either  appear  voluntarily, 
or  are  produced  by  the  master  of  the  market;  and  then  follows 
the  judgment  which  as  a  rule  makes  the  final  decision  dependent 
on  an  oath  of  the  parties  judicially  administered.  The  judg- 
ment is  executed  not  by  the  Alem,  but  by  the  market- 
master.^  If  the  judgment  debtor  cannot  or  will  not  pay  at 
once,  execution  follows,  by  means  of  which  his  goods,  and  con- 
tingently his  clothing,  are  attached  in  favor  of  the  judgment 
creditor. 

It  is  worthy  of  note,  that  the  tribe  to  which  the  market  belongs 
establishes  special  officers  for  the  measuring  and  weighing  of 
merchandise.  These  officers  are  compensated  by  fees  paid  by 
the  traders,^  Sometimes,  these  offices  are  sold  by  the  masters 
of  the  market.^  Otherwise  no  taxes  are  levied,  except  that, 
when  the  tribe  with  dominion  over  the  market  has  a  school,  a 
small  portion  of  meat  of  all  animals  killed  at  the  market  must  be 
delivered  to  it.^ 

Thus,  among  the  peoples  considered,  so  far  as  there  do  not  ap- 
pear remnants  of  the  protection  of  the  peace  by  the  assemblage 
of  the  traders  themselves,  the  Market  Peace  is  controlled  by  all 
the  members  of  a  primitive  village  or  tribal  community  and  the 
officers  appointed  by  it.  On  the  contrary,  it  may  be  regarded  as 
an  universal  legal  phenomenon  that  where  a  vigorous  chieftain 
or  kingly  power  has  developed,  it  assumes  the  function  of 
regulating  the  markets.  Kingly  market  sovereignty  existed  to 
some  extent,  perhaps  as  early  as  in  time  of  the  dispersion  of  the 
peoples,^  and  in  developed  form,  at  all  events,  as  early  as  the 
Carolingian  period.''  Royal  protection  of  Market  Peace  is  found 
very  early,  in  fact  before  the  influence  of  Germanic  law,  among 

^  Hanoteau  and  Letourneux,  III,  p.  38.  ^  Ibid.,  Ill,  p.  39. 

3  Ibid.,  Ill,  p.  38.  "  Ibid.,  II,  p.  79.  ^  Ibid.,  II,  p.  82. 

6  Cf.  Eugippius,  "Vita  S.  Severini,"  e.  22  ("Mon.  Germ.  Auet.  Ant.," 
II,  p.  19),  aeeordiiig  to  which  residents  of  a  Roman  city  desired  to  go  to  a 
neighboring  German  prince  to  receive  permission  to  trade  in  his  domain. 
Against  the  view  that  ' '  there  were  no  markets  in  ancient  G  ermanic  so- 
ciety" (Da/m,  "Deutsche  Geschichte,"  Bd.  I,  Th.  2,  p.  707),  cf.  Eugipp., 
op.  cit.,  cc.  6,  9. 

^  C/.  Eoi^(7en,  "Entstehung  der  Markte  in  Deutschland"  (Darmstadt, 
1881),  p.  9  seq.;  Schroder,  "D.  R.  G.,"  p.  186. 


Chap.  XXIII.]  PRIMITIVE   COMMERCIAL   LAW  433 

the  Slavs  ^  and  Magyars.-  Among  the  Chinese  ^  and  the  peoples 
of  Islam/  officers  of  the  ruler  are  found  caring  for  the  regulation 
and  law  of  market  commerce.  In  primitive  cultural  conditions 
there  may  be  found  a  developed  market-police ;  thus,  especially, 
in  the  capital  city  of  the  Bautshi  in  Sudan,  living  under  a  monar- 
chical system  of  government.  The  Ssersi-n-kurmi,  in  all  proba- 
bility a  royal  officer,  is  seen  daily  at  the  market.  He  decides  all 
barter  disputes,  and  sees  to  it  that  only  unadulterated  milk, 
and  that  only  flesh  separated  from  the  bones,  are  offered  for 
sale.^  In  the  kingdom  of  the  Bomas  on  the  Loango  coast,  a 
special  royal  officer  was  vested  with  supervision  over  the  market 
as  early  as  the  previous  [ISth]  century;  it  was  his  function  to 
oversee  all  the  commerce  between  the  natives  and  the  Europeans, 
and  to  prevent  trading  between  native-born  slaves  and  Euro- 
peans.^ Lastly,  reference  may  be  made  to  the  conditions  in  the 
kingly  territory,  Whydah,  in  Guinea.  It  was  already  reported  ^ 
in  the  previous  century  that  there  a  special  royal  officer  heard 
all  complaints  between  buyers  and  sellers  at  the  market,  and 
decided  by  summary  procedure.  The  still  primitive  medium  of 
exchange  was  also  under  the  control  of  a  royal  officer  in  Whydah.^ 
Just  as  in  the  case  of  the  public  (State)  law  and  criminal  law 
foundations  of  the  regulation  of  market  commerce,  so  also  in  the 
construction  of  the  standards  of  private  commercial  law,  there  is 
seen  a  surprising  similarity  among  widely  separated  peoples.  It 
must  be  conceded,  that  for  the  lowest  stages  of  culture  there  is 
almost  an  entire  absence  of  information  concerning  private  com- 
mercial law,  if  we  except  the  institution  of  the  broker,  discussed 
above,  who  is  also  a  protector  of  the  alien,  and  the  special  form  of 
company  law  of  the  caravans,^  where  certain  elements  of  public 
law  still  play  a  part.  It  is  certain  that  this  is  due  in  no  small 
degree  to  the  fact  that  under  such  conditions  civil  law  and  com- 
mercial law  are  nearly  synon^Tiious.     But  it  requires  to  be  men- 

1  Cf.  Tomaschek,  "Deutsches  Recht  in  Oesterreieh"  (1859),  p.  71. 

^  Fessler,  "Gesch.  von  Ungarn"  (Lpz.,  1867),  I,  p.  192. 

3  Biot,  "Le  Tseheou-Li"  (Paris,  1851),  p.  309  seq. 

*  Bchrnauer,  op.  cit.,  p.  138  seq.,  184  scq.,  187  scq. 

^  Rohlfs,  "Quer  durch  Afrika,"  II  (Lpz.,  1875),  p.  100,  and  in  Peter- 
manrCs  "Mitth.  Erganzungsh.,"  VII,  No.  34,  p.  36. 

^  Proyart,  "Histoire  de  Loango"  (Paris,  1776),  p.  124;  cf.  also  Bastion, 
"Die  deutsehe  Expedition  an  der  Loangokiiste"  (Jena,  1874),  Bd.  II, 
p.  40. 

''  Labat,  "Voyage  du  chevalier  des  Marchais  en  Guinee"  (Amsterd., 
1731),  II,  pp.  162,  163. 

^  This  phenomenon  is  better  treated  in  another  connection ;  cf.  Ku- 
lischer,  p.  385  seq.,  Haggenmacher,  p.  32,  Munzinger,  p.  124,  Kohler, 
"Rechtsvergl.  Studieu"  (1889),  p.  171. 


434  THINGS  [Part  III. 

tioned  that  among  the  Kabyles  there  existed  local  commercial 
usages.  In  a  period  now  left  behind,  in  the  markets  of  the  tribes, 
Ait  Yahia,  and  Akbil,  the  actio  redhibitoria  on  account  of  latent 
defects  in  goods  sold,  was  not  admitted  in  the  sale  of  cattle.^ 
It  hardly  needs  to  be  suggested,  that,  also,  in  Germany,  notwith- 
standing the  existence  of  a  general  commercial  law,  special  com- 
mercial usages,  and  many  special  commercial  statutes,  for  a  long 
time  governed  the  markets. 

Much  greater  analogies  are  found  in  the  private  commercial 
law  of  developed  legal  systems,  even  when  full  allowance  is  made 
for  the  wide  reception  of  foreign  law,  and  the  leveling  process  in 
commercial  legislation  of  modern  peoples.  It  will  here  suffice 
to  point  out  the  similarity  between  Germanic  commercial  law  of 
the  later  Middle  Ages  and  Indian  law.  According  to  the  code  of 
jNIanu,^  one  acquires  "ownership  of  an  object  who  buys  it  at  the 
market  before  witnesses,"  whether  the  seller  himself  was  the 
owner  or  not.  This  corresponds  fully  with  the  fact  that,  in  the 
later  Middle  Ages,  "whoever  buys  a  stolen  article  in  the  open 
market,  is  protected  against  the  claim  of  the  true  owner."  ^ 

These  examples,  however,  lie  outside  our  field,  in  that  they  do 
not  any  longer  represent  the  theme  of  primitive  law.  For  this 
reason,  the  writer  forbears  to  discuss  the  other  analogies  of  this 
and  later  stages  of  legal  development.^  ...  In  any  event,  it 
may  be  apparent  from  the  facts  introduced  by  this  study  that 
the  field  of  commercial  law  involves  a  fulness  of  problems,  of 
interest  for  ethnological  jurisprudence,  as  well  as  universal  legal 
history. 

*  Hanoteau  and  Letourneux,  II,  pp.  79,  390. 

2  Book  V,  Sec.  201  (trans,  hy  Jolly) ;  cf.  also  Maine,  "Earlv  Law  and 
Custom,"  pp.  194,  195. 

3  Heusler,  II,  p.  215;    Schroder,  "B.  R.  G.,"  p.  664. 

^  It  may  be  added,  that  in  China,  the  raising  and  lowering  of  a  flag 
was  a  signal  for  the  beginning  and  ending  of  Market  Peace,  precisely  as 
was  the  case  in  many  German  places  ;  cf.  Biot,  p.  213,  No.  5,  with  Schroder, 
"Rolande,"  pp.  16,  23  seq. 


Chapter  XXIV 

BARTER   AND   TRANSFER 

Section  1 

BARTER 1 

1.  Barter  is  based  on  the  idea  of  equalizing  values.  A  man 
gives  something  and  receives  something  in  return,  and  this  relation 
of  giving  and  receiving  is  not  governed  by  chance ;  rather,  the 
persons  stand  in  an  economic  relation  to  each  other,  a  relation 
in  which  values  are  equalized.  The  tertium  comperationis  of  both 
acts  is  the  equivalence  of  their  value. 

2.  The  barter  value  is  not  the  same  as  the  value  in  use ;  for 
it  is  not  the  value  that  is  determined  by  the  individual's  need, 
but  the  value  that  is  fixed  by  the  social  function  of  the  article 
in  general  commerce.  Under  value  in  this  sense,  we  understand 
the  extent  of  the  economic  worth  of  an  article,  which  is  determined 
by  its  comparison  with  other  wares  and  their  economic  uses.  It 
is  incorrect  to  say  (with  Marx)  that  value  always  corresponds 
to  the  labor  that  the  article  represents.  Value  is  rather  deter- 
mined by  a  whole  series  of  social  factors :  the  demand  for  the 
article,  the  effort  to  obtain  it,  the  greater  or  lesser  frequency  with 
which  it  is  offered  for  sale,  the  facility  with  which  it  is  obtained 
and  its  greater  or  lesser  rarity,  w^hich  is  by  no  means  only  a  matter 
of  labor  conditions  but  is  rooted  in  natural  circumstances.  All 
these  factors  will  affect  value,  and  will  cause  the  thing  —  even 
though  it  may  always  represent  the  same  amount  of  labor  —  to 
assume  sometimes  a  greater,  sometimes  a  lesser  social  importance. 

3.  It  is  not  only  need  that  is  of  importance  in  barter.  A  num- 
ber of  other,  mainly  psychic  circumstances  come  under  con- 
sideration, especially  the  human  love  of  variety  which  is  strongly 
developed,  particularly  in  nations  that  have  little  self-control  and 

'  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

435 


436  THINGS  [Part  III. 

little  mental  culture.  Men  grow  tired  even  of  what  is  best  and 
most  beautiful  and  want  something  else.  Then,  too,  the  psychic 
needs  that  are  esthetic  or  partly  esthetic  in  their  nature  have  to 
be  considered.  People  want  what  dazzles  and  attracts  them, 
what  appeals  at  the  time  to  their  sense  of  beauty,  or  rather  their 
mental  aspirations.  The  sudden,  unaccountable  popularity  of  a 
thing,  the  immeasurable  attraction  that  some  article  has  for 
people,  often  plays  a  great  part. 

4.  It  is  a  misconception  to  assert  that  barter  grew  out  of  the 
division  of  labor.  The  division  of  labor  naturalh"  increased  the 
need  of  barter ;  for  whereas,  formerly,  it  might  have  been  possible 
for  the  individual  to  satisfy  his  own  needs  and  longings  himself, 
it  ceased  to  be  so  as  soon  as  the  individual  was  limited  to  the  pro- 
duction of  certain  definite  wares.  It  is  true  only,  that  while 
otherwise  the  tendency  favoring  barter  transactions  was  based 
more  or  less  on  chance,  the  whole  system  of  economic  production 
made  it  essential. 

5.  The  backbone  of  barter  is,  as  has  been  said,  the  equalization 
of  value.  This  idea  of  equalization  increases,  as  soon  as  articles 
are  produced  which  are  not  regarded  as  a  means  of  satisfying 
personal  needs,  but  are  intended  to  represent  values.  Wliile, 
otherwise,  value  is  an  .r  which  is  contained  invisibly  in  the  objects 
a  and  b,  value  now,  at  least  on  one  side,  appears  openly.  It  is 
no  longer  an  .r  but  a  certain  quantity,  v,  and  the  question  of  value 
which  otherwise  comes  under  consideration  in  respect  to  both 
the  objects  a  and  b  (because  in  both  value  lies  invisibly  dormant), 
need  now  be  considered  only  in  connection  with  the  article  a, 
since  the  exchange  value  of  the  value-representative,  v,  is  given, 
representing  clearly  and  unmistakably  to  everyone  a  definite 
value.  In  this  way  money  originates.  This  not  only  means 
great  progress  in  the  valuation  of  things,  it  being  possible  to 
reduce  the  value  of  everything  to  a  money  unity,  just  as  when 
we  bring  all  fractions  under  one  denominator ;  ^  but  a  second 
advantage  is  involved,  —  an  advantage  with  the  most  momentous 
consequences,  —  that  the  value-representative,  money,  is  not, 
at  the  same  time,  a  means  of  satifying  any  one  special  human 
purpose.  If  one  who  wishes  to  dispose  of  article  a,  wants  to 
obtain  article  b,  he  must,  in  a  period  in  which  barter  is  the  only 
means  of  commerce,  seek  a  person  who  wants  article  a,  and  at 
the  same  time  has  article  b  to  dispose  of.  In  other  words,  the 
transaction  as  regards  a  and  b  depends  upon  chance  —  chance 

1  "Einfiihruug  in  die  Rechtswissenschaft,"  p.  69. 


Chap.  XXIV,  §  1.]  BARTER   AND   TRANSFER  437 

on  both  sides,  in  fact  —  for  the  sale  can  only  take  place  if  one 
individual  wishes  to  dispose  of  a  and  obtain  b,  and  the  other  wishes 
to  obtain  a  and  dispose  of  b.  This  is,  of  course,  a  powerful  obstacle, 
and  not  only  imposes  difficult  conditions  on  the  barter  transaction, 
but  necessitates  a  great  deal  of  human  effort,  till  finally,  an  op- 
portunity is  found  that  combines  both  requirements.  -. 

It  becomes  necessary  to  eliminate  this  chance,  and  one  of  the 
principal  means  of  accomplishing  this  is  the  introduction  of  money ; 
for  if  one  wishes  to  dispose  of  article  a  and  obtain  article  b 
he  has  only  to  find  a  person  who  wants  a,  and  will  give  him  the 
value-representative,  money,  for  it.  With  this  value-represen- 
tative, he  can  now  seek  some  one  else  who  Welshes  to  dispose  of 
article  b,  and  in  this  way  he  succeeds  in  acquiring  article  b  instead 
of  the  article  a  which  he  possessed.  Here  the  contingency  is 
only  on  one  side ;  the  sole  chance  is,  that  some  one  wishes  to 
acquire  article  a,  and  further  that  some  one  else  wishes  to  dispose 
of  article  6.  Separated  in  this  way,  the  contingency  is  much  more 
easily  overcome  than  when  it  is  combined.  If  the  simple  chance 
occurs  in  perhaps  fifty  per  cent  of  the  cases,  the  combined  chance 
occurs  in  only  about  ten  per  cent  of  the  instances. 

6.  In  order  that  money  may  come  into  use,  things  must  enter 
into  commerce  that  are  most  generally  used,  and  which  are  fairly 
uniform  in  value.  When  this  is  the  case,  the  custom  will  gradually 
grow  up  of  giving  an  article  for  such  an  article  of  general  use,  which 
is  much  easier  to  find  and  circulates  more  freely  in  commerce  than 
any  other.  \\Tien  it  has  become  usual,  instead  of  satisfying  one's 
wants  directly  by  barter,  to  seek  first  for  such  an  article,  and 
then  to  find  the  man  who  wishes  to  dispose  of  the  thing  desired, 
the  peculiar  use  of  the  article  will  be  less  and  less  considered,  and  it 
will  become  more  and  more  a  representative  of  value  until  finally 
it  comes  to  be  regarded  only  in  the  latter  aspect.  Among  peoples 
that  live  by  hunting,  such  articles  are  chiefly  animals'  pelts,  which 
everyone  needs;  among  cattle-raising  peoples,  cattle.  Different 
kinds  of  animals  acquire  a  general  value-significance  ;  small  cattle 
(calves,  sheep,  goats,  and  pigs)  represent  a  certain  value,  large 
cattle  another;  and,  as  medium  sized  animals  are  the  standard, 
the  size  of  the  individual  animals  does  not  matter.  This  is  made 
especially  easy  among  pastoral  tribes,  by  the  fact  that  one  shepherd 
has  all  the  animals  of  the  place  in  his  keeping ;  so  that  the  transfer 
can  be  made  simply  by  re-branding  those  that  have  changed  hands. 

The  disadvantages  of  using  animals  in  this  way  appear  as  soon 
as  the  institution  of  money  becomes  more  developed ;    for  then 


43S  THINGS  [Part  III. 

money  must  not  only  be  a  representative  of  value,  but  also  a 
means  of  keeping  or  storing  value,  and  a  means  of  dividing  it. 
This  presupposes  that  the  articles  have  a  certain  permanency, 
and  do  not  decay  after  a  time ;  also  that  the}-  do  not  require  con- 
stant attention,  as  is  the  case  with  animals.  Thus,  instead  of 
pelts  or  animals,  leather  money  comes  to  be  used.  Hence,  also, 
some  nations  use  shells  and  other  permanent  objects  of  value- 
But  it  should  also  be  possible  to  represent  different  degrees  of 
value,  from  the  smallest  to  the  greatest,  for  if  the  objects  a,  h,  c, 
having  different  degrees  of  value,  are  exchanged,  the  value-repre- 
sentative must  be  such  that  the  value  of  a,  h,  c,  can  be  represented. 
This  is  only  possible  if  it  is  divisible,  which  is  not  the  case  with 
animals,  but  is  with  leather  and  shells,  inasmuch  as  a  larger  or 
smaller  number  can  be  strung  together. 

But  metals  have  all  these  qualities  in  a  much  higher  degree; 
hence,  it  soon  occurs  to  peoples  that  have  metals  to  give  up  all 
other  value-representatives,  and  to  use  only  metallic  mone}'; 
ore,  of  course,  at  first,  and  then,  when  the  production  of  gold 
and  silver  is  sufficiently  developed,  these  metals  too. 

The  division  of  value,  when  metals  are  used,  presupposes  of 
course  that  weighing  scales  are  always  at  hand,  on  which  the 
quantity  can  be  weighed  that  corresponds  to  the  value ;  until 
at  last,  the  new  idea  arises  of  marking  on  a  piece  of  metal  the 
amount  of  metal  it  contains,  and  in  such  a  way  that  it  is  universally 
credited.  Thus  coined  money  originates.  Coined  money  has 
two  qualities :  it  is  a  value-representative  in  itself,  and  it  is  a 
value-representative  with  a  publicly  announced  metal  content. 

In  this  way,  the  public  offices  that  mark  the  pieces  of  metal 
gain  a  tremendous  influence  over  money.  Soon  the  idea  of 
allowing  semblance  to  take  the  place  of  reality  appears  more  and 
more  persistently.  The  State  begins  to  make  out  false  certificates, 
to  coin  or  mint  money,  that  is,  to  stamp  the  coin  with  a  higher 
value  than  the  true  value  of  the  piece  of  money.  If  this  is  done 
secretly,  and  in  order  to  deceive  the  people,  it  is  immoral  and  leads 
to  the  destruction  of  public  confidence.  Whenever  it  has  been 
done  in  this  way,  it  has  always  ended  in  a  period  of  confusion 
and  disorder.  It  is  entirely  different,  however,  when  the  sem- 
blance is  not  intended  to  deceive,  when  the  stamp  is  not  supposed 
to  convey  the  idea  that  the  coin  contains  a  certain  amount  of 
metal,  but  only  that  it  is  to  be  used  as  if  it  contained  that  amount. 
In  this  way  fractional  currency  and  paper  money  arise. 

7.   Even  after  the  introduction  of  money  one  element  of  con- 


CuAP.  XXIV,  §  2.]  BARTER   AND   TRANSFER  439 

tingency  still  remains,  and  this  element  the  intermediaries  of 
commerce  seek  to  eliminate  as  far  as  possible.  This  kind  of 
commerce  consists  of  acquiring  goods  not  for  one's  own  use  but 
in  the  expectation  that  others  will  need  them.  They  are  kept 
in  stock  on  the  chance  of  their  being  wanted.  The  result  of  this 
is  that  if  some  one  wishes  to  sell  article  a,  it  is  not  necessary  for 
him  to  find  a  person  who  needs  this  article ;  he  has  merely  to  go 
to  the  middleman :  and  similarly,  if  he  wishes  to  buy  the  article 
b,  he  need  not  seek  a  person  who  happens  to  have  such  an  article, 
and  is  willing  to  sell  it ;  he  need  only  apply  to  the  middleman 
who,  without  himself  being  in  need  of  any  special  article,  disposes 
of  the  object  h  for  money.  The  progress  of  culture  can  be  per- 
ceived in  this  process,  inasmuch  as  chance  is  eliminated  as  far  as 
possible,  and  man  overcomes  the  obstacles  that  nature  and  society 
throw  in  his  path. 

8.  At  first  all  barter  transactions  were  promptly  and  imme- 
diately completed,  particularly  barter  between  different  tribes, 
which  developed  as  private  commerce.  But,  even  among  members 
of  the  same  tribe,  a  thing  was  given  for  a  thing  received  at  the 
time.  To  give  something  for  a  thing  that  is  to  be  received  in  the 
future  presupposes  an  economic  mind  that  is  directed  toward 
the  future,  which  primitive  peoples  did  not  possess,  and  which 
some  peoples  never  attain.  \Vlien  sale  takes  the  place  of  barter, 
the  idea  of  credit  will  arise  much  more  easily ;  though,  even  then, 
the  mind  is  not  able  to  renounce  the  idea  of  a  bargain  for  ready 
money.  Thus,  if  a  man  wishes  to  buy  something  and  pay  for  it 
later,  he  does  it  indirectly  by  paying  the  price  "constructively," 
and  then  receiving  it  again  as  a  loan.  By  this  method  two  trans- 
actions are  combined  that  gradually  become  one  :  the  "construc- 
tive" pajTnent  is  no  longer  taken  into  account,  and  the  return  of 
the  loan  is  treated  as  a  part  of  the  original  transaction. 


Section  2 

PRIMITIVE   TRANSFER  OF  GOODS i 

1.     Tribes  among  whom  Commerce  is  supposed  to  be  unknown 

The  fundamental  fact  from  which  we  must  start  out  is  that 
among  all  the  tribes  here  investigated,  there  was  commerce  not 

^  [By  Felix  Somlo,  Professor  in  the  University  of  Kolozsvar.  Trans- 
lated by  Albert  Kocourck  from  "  Der  Giiterverkehr  in  der  Urgesellschaf t " 
("Travaux  de  I'lnstitut   de   Sociologie"  [Solvay  Institution],  I,  Notes  et 


440        '  THINGS  [Part  III. 

only  within  the  tribes  but  also  between  tribes.  We  must,  however, 
hear  the  recitals  concerning  tribes  which  are  supposed  to  ha\e 
known  nothing  of  trade.  Grierson  has  collected  a  small  number 
of  such  assertions.  Cook  found  that  the  Australians  had  no  idea 
of  barter.  The  same  fact  is  deposed  by  Dampier  also,  for  the  Aus- 
tralians; by'Le  Yaillant  for  the  Hottentots;  by  Wallis  for  the 
natives  north  of  the  Magellan  Straits ;  by  Herrera  for  the  aborig- 
ines of  America  with  whom  Alonso  de  Ojeda  and  Amerigo  Vespucci 
first  came  into  contact ;  and  by  Labillardiere  for  the  natives  of 
the  Solomon  Islands.^  It  has  been  shown,  however,  for  all  of  these 
tribes,  that  these  statements  are  untrue.  It  has  been  the  mis- 
fortune of  many  authors,  such  as  Herbert  Spencer,  and  Ch.  Letour- 
neau,"  to  be  misled  by  such  superficial  assertions.  A.  Coste 
also  maintains  that  of  all  social  phenomena,  barter  was  the  last 
to  appear  and  to  develop.^  So  far  as  social  development  can  be 
traced  back,  we  also  find  a  circulation  of  goods.  This  activity 
goes  parallel  with  all  other  activities  of  social  life. 

We  have  come  very  near  to  the  same  conclusion  that  Grierson 
arrives  at  in  his  book  ("The  Silent  Trade")  where  he  states  that 
the  custom  is  almost  universal  of  expecting  an  equivalent  in  return 
in  making  gifts ;  and  that  there  are  many  cases  where  there  is  an 
understanding  between  the  giver  and  taker  that  a  return  gift  is 
to  be  made.  It  is,  of  course,  reported  of  various  tribes  that  they 
had  no  idea  of  trade ;  yet,  it  is  to  be  remarked,  that  in  many  cases 
these  assertions  are  contradictory,  and  that  such  an  assertion  for 
all  cases,  does  not  mean  anything  more  than  that  certain  Europeans 
w^ere  not  able  to  trade  with  certain  savage  peoples.  It  is  entirely 
possible  that  these  instances  do  not  show  a  lack  of  knowledge  of 
trade,  but  are  due  to  fear,  mistrust,  or  misunderstanding.  A 
savage  may  be  quite  ready  to  trade  with  a  tribesman  when  he 
would  decline  any  association  with  a  foreigner.^ 

Memoires,  Fasc.  8,  Brussels,  1909),  p.  155  seq.  The  primitive  societies 
examined  in  this  work  are  the  following :  The  aborigines  of  Tasmania, 
the  Botoeudos,  the  Fuegians,  the  Andaman  Islanders,  the  Negritos,  the 
Bushmen,  the  Seri  Indians,  and  the  Veddahs.] 

1  Grierson,  "The  Silent  Trade,"  pp.  20-21  (where  the  respective  refer- 
ences are  entered)  ;  cj.  also  A.  Sartorius,  " Die  Entstehung  des  Tausch- 
handels  in  Polynesien,"  "Z.  f.  Sozial  u.  Wirtschaftsgeschichte,"  IV, 
1896,  pp.  5-9. 

'Spencer,  "The  Principles  of  Sociology."  London,  1897,  111,380-1; 
Letourneau,  "L'evolution  du  Commerce,"  Paris,  pp.  6,  10,  24. 

'  Adolphe  Cosie,  "L'Experience  des  peuples,"  Paris,  1900,  p.  197. 

*  Grierson,  "The  Silent  Trade,"  39,  40. 


Chap.  XXIV,  §  2.]  BARTER   AXD   TRANSFER  441 

2.  Exchange  of  Gifts 

We  find  not  only  that  barter  is  known  to  all  these  primitive 
peoples,  but  that  there  is  also  considerable  commerce  between  the 
tribes  and,  likewise,  among  the  individuals  of  these  tribes.  This 
circulation  of  goods  is  not  always  based  on  the  juristic  plan  of 
barter  familiar  to  us.  Yet  the  juristic  form  of  these  transactions 
is  only  of  secondary  importance.  Too  much  weight  has  heretofore 
been  ascribed  to  juristic  form.  Because  the  legal  form  of  barter, 
as  we  know  it,  has  not  been  found  among  these  peoples,  it  has  been 
concluded  that  the  fact  of  exchange  of  goods  did  not  exist.  The 
gift,  it  is  true,  was  found,  but  since  in  our  economic  life  it  has  no 
great  importance,  it  was  supposed,  in  like  manner,  that  it  also  had 
no  importance  as  an  idea  of  primitive  peoples.  Incidentally,  it 
may  be  observed,  that  to  denominate  these  primitive  transactions 
as  gifts  is  not  accurate.  Such  a  transaction  is  neither  our  form  of 
gift  nor  our  form  of  barter,  but  lies  intermediate  between  them. 
It  is  a  legal  transaction  rigidly  circumscribed  by  definite  rules  and 
is  the  primitive  form  of  gift  and  barter  in  the  modern  sense.  Both 
■  have  evolved  out  of  this  original  undifferentiated  institution.  It 
is  a  mistake,  therefore,  to  call  these  primitive  transactions  gifts. 
They  resemble  gifts  in  this,  that  at  first  there  is  a  one-sided  giv- 
ing corresponding  to  a  one-sided  taking,  and  that  the  amount  of 
the  gift,  as  well  as  the  gift  itself,  depends  on  the  one-sided  act  of 
the  giver.  They  resemble  barter,  however,  in  so  far  as  the  gift 
is  made  with  the  expectation  of  a  gift  in  return  which  return  gift 
is  one  of  the  most  stringent  customary  duties.  Custom  regulates 
the  value  of  the  gift  and  the  return  gift  by  strict  rules.  It  is 
therefore  proper  to  call  this  legal  transaction  barter-gift.^ 

]\Iore  important  than  the  form,  is  the  fact  that  the  legal  trans- 
action is  widely  disseminated  among  primitive  peoples,  and  has 
great  economic  significance  as  a  means  for  the  interchange  of 
goods. 

3.   Origin  of  the  Caste  System 

The  fact  of  tribal  barter,  and  the  division  of  labor  resulting 
therefrom,  as  well  as  the  reciprocal  dependence  of  the  tribes  on 

^  Berolzheimer,  "System  der  Reehts-  und  Wirtsehaftsphilosophie," 
Munich,  1907,  Bd.  IV,  p.  223,  accurately  states  that  "  the  foundation  of 
commerce  is  the  offer  of  a  gift  with  the  expectation  of  a  gift  in  return." 
H.  Panckow,  "Betrachtungen  iiber  das  Wirtschaftsleben  der  Xaturvolker" 
in  "Z.  d.  ges.  Erdk.,"  Berlin,  XXXI,  181,  on  the  contrary  inaccurately 
draws  the  conclusion  that  "in  this  stage,  barter  entirely  misses  any  direct 
connection  between  performance  and  counter-performance,  and,  also, 
any  concept  of  its  value." 


442  THINGS  [Part  III. 

each  other,  attain  significance  when  combined  and  connected  with 
another  fact  generally  known.  We  know  that  it  is  a  world-wide 
phenomenon  which  regularly  appears,  for  primitive  social  organ- 
izations to  integrate  into  higher  forms.  Spencer  has  even  been 
able  to  demonstrate  that  the  higher  social  organizations  never 
result  from  simple  extension  or  development  of  primitive  forms, 
but  that  a  combination  of  lower  organizations  is  always  neces- 
sary in  this  process.^  The  ways  in  which  this  integration  is  brought 
about  may  be  very  dissimilar.  In  one  locality  it  may  result  from 
an  amicable  union  of  neighboring  tribes  in  perpetual  wars  of 
defense  against  an  overpowering  enemy ;  in  another,  such  a  new 
construction  may  follow^  permanent  subjugation.  Let  us  see  w^hat 
are  the  necessary  consequences  of  such  an  integration  between 
tribes  which  during  their  independence  had  developed  various 
tribal  industries,  and  had  attained  a  tribal  division  of  labor ;  like 
those  of  Australia,  Central  Brazil,  and  the  North  American  In- 
dians ;  and  which,  likewise,  is  an  universal  phenomenon.  At  one 
stroke,  the  tribal  industries  turn  to  a  variety  of  industries  of  the 
new  social  unity ;  and  the  different  tribes  become  differentiated 
into  elements  of  a  greater  society  with  an  internal  division  of  labor 
now  sharply  defined,  and  unknow^n  in  the  earlier  stages  of  devel- 
opment. The  enlarged  social  entity,  together  with  the  differen- 
tiation of  function  which  it  conditions,  is  already  in  existence  in 
the  independent  tribes  with  different  tribal  industries,  and  only 
awaits  an  incidental,  external  circumstance  which,  now%  in  one 
form,  and  then,  in  another,  brings  about  an  integration.^ 


4.   Silent  Trade 

According  to  a  view  widely  accepted  so-called  "silent  trade" 
is  the  primitive  form  of  barter.^  .  .  . 

We  are  unable  to  share  this  conclusion.  We  have  seen  that 
silent  trading  even  among  the  most  primitive  tribes  is  very  little 
diff'used.  Of  those  discussed  [in  the  original  work]  only  the 
Veddahs  know  this  kind  of  barter.  We  learned  also  that  silent 
trading  in  Ceylon  is  an  ancient  institution  which  has  stood  thou- 
sands of  years  and  is  thoroughly  established.     Greeks,  Persians, 

1  Spencer,  "The  Principles  of  Sociology,"  London,  1904,  1,543. 

-  Ratzel,  "  Volkerkunde,"  I,  81  ;  Panckow,  op.  cit.  [p.  441  note],  pp.  186-7  ; 
Rene  Maunier,  "Vie  religieuse  et  vie  economique,"  Paris,  1908. 

^  Thus  Post,  "Grundriss  der  Ethnolog.  Jur.,"  II,  628;  and  Letourneau, 
"L'evolution  du  Commerce,"  Paris,  1897,  p.  529.  The  latter  even  de- 
rives the  barter-gift  from  silent  trading. 


I 


Chap.  XXIV,  §  2.]  BARTER   AXD   TR.\.XSFER  443 

Arabians,  and  Chinese  have  had  commercial  relations  with  Cey- 
lon, and  have  used  the  silent  trading  method  as  a  custom  of  the 
country.  It  is  highly  probable  that  silent  trading  among  the 
Veddahs  is  not  an  original  institution  with  them  but  has  been 
adopted  from  neighboring  tribes.  We  may,  therefore,  assert  that 
silent  trade  among  the  most  primitive  tribes  which  we  have 
examined  is  not  an  autochthonous  form  of  barter.  In  support 
of  our  view  that  silent  trade  cannot  be  regarded  as  a  rudimentary 
form  of  barter,  it  is  significant  that  while  this  institution  is  not 
found  as  a  general  autochthonous  usage  among  the  most  primitive 
tribes,  yet  otherwise  it  is  very  widely  disseminated.  Grierson  in 
his  comprehensive  examination  of  this  question  has  demonstrated 
that  silent  trading  is  not  an  exceptional  peculiarity  of  this  or  that 
people,  but  is  an  institution  of  the  widest  diffusion.  He  collects 
accounts  of  forty  tribes  which  employ  this  form  of  barter.  .  .  . 
If  the  data  assembled  by  Grierson  also  relate  to  entirely  primitive 
tribes  —  aside  from  the  Veddahs  only  the  Kubus  of  Sumatra  and 
the  Akkas  of  the  Belgian  Congo  come  here  under  consideration  — 
yet  it  is  to  be  observed  that  these  are  tribes  which  have  come 
into  commercial  touch  with  peoples  of  higher  development. 
Among  the  great  mass  of  data,  on  the  contrary,  which  inform  us 
of  barter  transactions  of  the  most  primitive  tribes  among  them- 
selves, silent  trade  is  wholly  unknown.  This  is  sufficient  to  prove 
that  silent  trade  is  not  the  original  basis  of  barter,  but  that  it 
belongs  to  a  higher  stage  of  development  in  the  exchange  of 
goods.^ 

This  shows  the  vice  of  the  prevailing  ethnological  method 
which  chooses  to  proceed  without  a  classification  of  social  types 
and  simply  assumes  that  that  which  appears  to  be  primitive  is  the 
token  of  the  earliest  form  of  society.  Thus,  it  is  believed  that 
nothing  can  be  more  primitive  than  when  two  persons  want  to 
barter  with  each  other,  that  they  should  not  meet  face  to  face, 
but  that  they  should  lay  down  their  wares  and  run  away  ;  -  and  the 
conclusion  is  reached,  regardless  of  the  people  who  adopt  this 
form  of  barter,  that  this  is  the  starting-point  of  barter  relations. 
One  sees  how  necessary  it  is  for  the  reconstruction  of  primitive 
society  which  is  still  accessible  to  us  to  confine  our  investigation 
to  the  most  inferior  tribes. 


1  See  Grierson,  "The  Silent  Trade,"  pp.  41-50;   H.  Schxrtz,  "Grundriss 
leiner  Entstehungsgesehichte  des  Geldes,"  Weimar,  1898,  p.  71. 
^  [See  Chap.  XXIII,  p.  421,  supra  —  "Primitive  Commercial  Law."] 


444  THINGS  [Part  III. 

We  may  incidentally  indicate  the  only  explanation  which  it 
seems  can  be  given  of  silent  trading  in  primitive,  ages,  by  calling 
to  mind  the  Ngia-ngiampe  in  Australia.^  Two  children  of  differ- 
ent tribes  are  mutually  estranged  by  certain  ceremonies.  They 
may  not  speak  together,  touch  each  other,  or  come  near  each  other. 
Such  persons  take  great  pains  to  remain  apart  from  another.  As 
soon  as  they  reach  maturity  they  become  agents  through  whom  the 
tribes  in  question  carry  on  their  barter  transactions.  Grierson, 
to  whom  this  fact  was  not  unknown,  has  nothing  to  say  of  it, 
except  that  this  kind  of  barter  has  nothing  to  do  with  silent  trade. 
He  inclines,  moreover,  to  the  view  that  silent  trade  is  an  invention 
for  securing  the  safety  of  foreign  tribes  in  their  dealings.  The 
practiced  eye  of  Durkheim  perhaps  does  not  deceive  itself  when 
he  says,  contrary  to  the  views  of  Grierson,  that  the  ceremonies  of 
silent  trade  "are  visibly  of  a  religious  origin."  ^  .  ,  . 

Durkheim  appears  to  have  hit  the  right  path  with  this  state- 
ment of  the  problem,  and  by  taking  the  Australian  Ngia-ngiampe 
for  illustration  of  the  origin  of  silent  trading,  to  have  made  a  dis- 
tinct advance.  For  the  religious  ceremonies  in  the  barter  trans- 
action of  Ngia-ngiampe  are  entirely  the  same  as  those  which  are 
typical  of  silent  trade.  .  .  . 

5.    The  Payment  of  Tribute 

.  .  .  The  various  forms  of  compulsory  tribute  are  well  known. 
Husband  and  wife  each  owe  certain  material  performances  to  the 
other ;  the  same  is  true  between  parents  and  children ;  also,  on 
the  part  of  the  son-in-law  to  the  father-  and  mother-in-law,  and, 
less  frequently,  in  the  reverse  order.  In  general,  every  one  must 
make  these  performances  in  favor  of  a  strictly  defined  order  of 
relatives,  sometimes  even  to  the  entire  group  association.  Fre- 
quently, also,  the  tribal  associates  owe  these  duties  to  prominent 
individuals,  and,  in  turn,  the  most  prominent  and  wealthy  to  the 
tribal  members.  Very  often,  a  rigidly  defined  class  in  the  tribe 
must  make  performances  in  favor  of  another  class ;  and  lastly  the 
younger  people  to  certain  elders.  These  duties  of  giving  tribute 
are  all  of  a  compulsory  character,  and  may  appear  in  the  most 
diverse  juristic  forms.  It  may  be  a  duty  of  liberality  which, 
however,  may  be  in  performance  of  an  external  prescription,  as 
well  as  an  inner  compulsion.     Again,  it  may  be  a  parental  or  a 

1  Cf.  Howitt,  "The  Native  Tribes  of  South-East  Australia,"  p.  181. 
^Durkheim,  "L'annee  Sociologique,"  Paris,  1905,  VIII,  485. 


Chap.  XXIV,  §  2.]  BARTER   AND    TRANSFER  445 

filial  duty.  Furthermore,  tribute  may  be  given  in  the  form  of 
religious  ceremonies.  The  occasion  may  be  nuptial,  pre-nuptial, 
or  post-nuptial.  Many  forms  of  tribute  relate  to  the  event  of 
death  ;  others  are  due  to  the  taking  of  booty,  or  are  occasioned  by 
certain  meetings  or  ceremonies,  or  are  made  obligatory  in  some 
other  way  through  usage  casuistically  defined  for  the  case. 

A  phenomenon  of  primitive  circulation  of  goods  of  special 
interest,  and  hitherto  wholly  unnoticed  on  the  part  of  sociology, 
is  that  which  developed  about  the  chieftain.  Among  the  Dieri, 
individuals  collect  a  large  amount  of  property  in  all  kinds  of 
weapons  and  adornments,  which  they  present  to  the  leading  chiefs 
in  order  in  this  way  to  promote  their  own  position.  Especially 
in  the  more  developed  tribes  of  Southeast  Australia,  who  also 
have  a  more  developed  form  of  chieftainship,  there  is  a  lively 
giving  and  receiving  of  goods  among  the  chieftains.  We  learn 
even  of  the  miserable  Fuegians  that  they  often  have  feasts  where 
the  host  serves,  and  shows  himself  to  be  very  generous.  .  .  . 
The  fact  which  confronts  us,  in  view  of  these  usages  of  giving  pres- 
ents, and  tributes,  whatever  the  juristic  form  may  be,  is  that  these 
peoples  have  a  developed  tribal  and  intra-tribal  system  of  trans- 
ferring goods,  and  that  we  can  attain  no  proper  idea  of  their 
economic  situation  without  taking  this  fact  into  account.  .  .  . 

6.    Circulation  of  Goods  iciihout  Division  of  Labor 

It  is  generally  assumed  that  distribution  of  property  must  be 
based  on  division  of  labor.  Where  there  is  no  division  of  labor, 
where  all  persons  produce  the  same  things,  there  is  nothing  to 
barter ;  and  there  is  no  occasion  for  the  circulation  of  goods. 
Inasmuch  as  among  the  most  primitive  peoples,  division  of  labor, 
and,  especially',  intra-tribal  division  of  labor  on  the  whole,  is 
limited  only  to  a  sexual  distinction,  it  is  supposed  that  here 
there  can  be  no  movement  of  goods  except  between  man  and 
woman.  ^   .    .   . 

On  the  contrary,  the  facts  show  that  circulation  of  goods  is  not 
exclusively  connected  with  division  of  labor,  but  rather  that  a 
development  of  individualized  labor  cannot  come  about  without 
antecedent  exchange  of  property.  It  is  only  when  exchange  has 
become  a  durable  practice  that  the  varying  phenomena  of  special- 

'  Karl  Biichcr,  "Die  Entstehiing  der  Volkswirtschaft,"  5e  Auflage, 
Tubingen,  190(3,  p.  62;  Berolzheimer,  "System  der  Reehts-  u.  Wirt- 
schaftsphilosophie,"    IV,    221-3. 


446  THINGS  [Part  III. 

ization  of  production  are  seen.     Barter  is  the  primary  phenome- 
non, and  division  of  labor  secondary. 

7.    Individual  Satisfaction  of  Wants 

According  to  the  prevailing  view,  primitive  society  shows  us  an 
economic  situation  \^'ithout  barter.  Differences  of  opinion  first 
arise  in  laying  a  foundation  for  this  view.  One  extreme  has  it, 
that  there  is  no  exchange  of  goods  in  primiti\e  society  because  there 
was  no  economic  association  between  individual  persons ;  each 
one  standing  economically  apart  from  the  others.  According  to 
the  other  extreme,  primitive  society  has  no  room  for  a  circulation  of 
goods,  and  especially  none  for  barter,  because  the  primitive  group 
w^as  the  most  exclusive  economic  society.  Primitive  communism 
had  no  need  for  exchange  of  goods. 

One  extreme  is  represented  by  Biicher  :  ^  "If  we  eliminate  from 
the  life  of  the  Bushmen  or  the  Veddahs  the  use  of  fire,  and  the  bow 
and  the  arrow,  there  will  be  nothing  left  except  individual  effort 
to  pro\'ide  the  means  of  subsistence.  Each  one  consumes  raw 
what  he  is  able  to  lay  his  hands  on,  or  scratch  out  of  the  earth  with 
his  nails  —  small  animals,  roots,  and  fruits.  At  one  time  men 
gather  in  small  troops  or  in  larger  companies ;  at  another  time 
they  break  up  their  crowds  according  to  the  productiveness  of  the 
country  or  the  hunting  ground.  But  these  gatherings  are  not 
societies ;  they  do  not  mitigate  the  lot  of  the  individual."  "  Each 
individual  consumes  immediately  what  he  finds,  and  there  is  no 
such  thing  as  a  common  household  or  home."  For  proof  of  this 
supposed  stage  of  individual  satisfaction  of  wants,  Biicher  relies 
on  the  fact  that  among  many  tribes  there  are  no  common  meal 
hours  "in  the  family."  "Each  person  is  separated  from  the  rest 
and  it  is  considered  unbecoming  to  disturb  another  when  eating  or 
to  take  food  in  the  presence  of  a  stranger."  Furthermore,  within 
the  family  nearly  every  object  is  individually  owned  by  a  member 
of  the  family.  "So  certain  is  it  that,  as  to  such  things,  the  first 
thought  is  of  mine  and  thine,  and  so  numerous  are  the  observ- 
ances which  point  in  that  direction,  that  this  idea  of  ownership 
becomes  attached  to  the  individual  and  succumbs  with  him. 
Possession  sinks  into  the  grave  loith  the  possessor.''  -  .  .  . 

i"Der  wirtsehaftliehe  Urzustand"  and  "Die  Wirtsehaft  der  Natur- 
volker"  in  his  "Entstehung:  der  Volkswirtschaft." 

2  See,  also,  H.  Schurtz,  "Urgesehiehte  der  Kultur,"  Leipzig  u.  Wien, 
1900,  pp.  212-3;  H.  Pnuckoic,  "Betr.  ii.  d.  Wirtschaftsleben  d.  Natur- 
volker"  in  "Z.  d.  Ges.  f.  Erdk.  zu  Berlin,"  XXXI,  178-80. 


Chap.  XXIV,  §  2.]  BARTER   AND   TRANSFER  447 

It  is  perhaps  not  necessary  to  say  much  on  the  insufficiency  of 
this  description  of  primitive  society.  Others  have  already  done 
this.^  I  may  conveniently  limit  my  discussion  to  the  question  of 
the  stage  of  individual  satisfaction  of  wants. 

Of  such  a  stage  of  evolution  we  know  nothing  at  all,  and  we  have 
no  right  to  assume  it.  Truly,  there  is  a  sharply  defined  separation 
of  work  between  the  sexes.  Women  everywhere  have  provided 
the  man  with  plant  food  and  frequently  share  to  some  extent  in 
the  animal  food  gotten  by  the  man.  The  youths  are  obliged  to 
make  provision  for  the  elders.  Division  of  the  spoils  of  the  chase 
is  a  matter  strictly  regulated.  Various  tribute  duties  are  paid  to  the 
families  of  women,  to  the  members  of  the  individual's  own  family, 
to  the  members  of  certain  tribal  classes,  etc.  The  pursuit  of  means 
of  subsistence  is  everything,  but  it  is  not  limited  to  the  individual. 

It  must  be  admitted  that  the  primitive  family  is  not  found  to 
be  an  exclusive  consuming  unity.  Yet,  this  is  not  proof  of  an  an- 
terior individualist  economy.  Husband  and  wife  are  usually  of 
different  clans.  That  in  many  places  they  do  not  have  a  common 
meal  time  is  perhaps  easier  explainable  as  a  condition  of  exogamy 
than  as  a  survival  of  individual  seeking  of  subsistence.  This  is 
most  clearly  shown  by  the  fact  that  not  all  the  members  of  the 
tribe  are  required  to  shun  each  other  at  meal  times.  In  Australia 
a  great  deal  of  food  must  be  eaten  in  public  and  not  by  each 
individual  for  himself. ^  .  .  . 


One  may  see  how  unprofitable  is  the  customary  ethnological 
method  of  which  we  have  already  spoken,  and  which  Biicher  con- 

1  L.  Wodon,  "Sur  quelques  Erreurs  de  Methode  dans  I'etude  de 
rHomme  Primitif"  ("Trav.  d.  I'lnst.  Solvay,"  Fasc.  4),  Bruxelles,  1906; 
S.  R.  Sieinmetz,  " Classification  des  types  sociaux"  in  "L'annee  Sociolo- 
gique,"  III,  1900,  p.  101. 

^  Liimholz,  "Reponse  au  Questionnaire"  in  "Bulletin  de  la  Societe 
d'Anthropologie,"  Bd.  XI,  p.  649.  [For  further  examples,  from  the  omit- 
ted text,  see:]  Ehrenreich,  "Ueber  die  Botokudos,"  in  "Z.  f.  Ethnologie," 
1887,  Bd.  XIX,  p.  31;  Ph.  M.  Rey,  "fitude  anthropologique  sur  les 
Botocudos,"  Paris,  1880,  p.  79;  Hyades  el  Deniker,  "Mission  seientifique 
du  Cap  Horn,"  1882-3,  Tome  VII,  Anthropologie,  Ethnographic, 
1891,  p.  243;  M.  Hyades,  "Ethnographie  des  Fuegiens,"  in  "Bull,  de  la 
Soc.  d'Anth.  de  Paris,"  1887,  X,  328;  Man,  "Aboriginal  Inhab."  327, 
344-54;  P.  Felipe  Calayag  y  Cleynente,  "Vida  de  los  Aitas  o  Negritos," 
1877;  L.  Meischnikoff,  "Bushmen  et  Hottentots,"  in  "Bull,  de  la  Soe. 
Neuehateloise  de  Geog."  1889-90,  V,  81;  Passarr/e,  "Die  Busehmanner 
der  Kalahari,"  BerHn,  1907,  57,  .58;  Featherman,  "Social  History  of  the 
Races  of  Mankind,"  First  Div.,  "Negritians,"  London,  1885,  529;  Mc- 
Gee,  "The  Seri  Indians"  [see  Vol.  I  of  this  compilation];  Tennent,  "Cey- 
lon," II,  441,  444,  445.  Cf.  Thonnar,  "Essai  sur  le  systeme  economique 
des  primitifs,"  pp.  9-12;   F.  Simiand,  in  "L'Annee  Soc."  VI,  485. 


448  THINGS  [Part  III. 

sciously  follows.  If  it  is  allowable  to  select  at  random  from  the 
great  mass  of  ethnological  data  what  appears  to  be  primitive,  or 
to  declare  facts  so  selected  to  be  survivals  of  a  hypothetical  prim- 
itive stage  of  evolution  without  reference  to  a  precedent  general 
classification  of  the  peoples,  then  it  is  possible  to  prove  anything 
with  ethnology.  In  such  case,  it  will  make  no  difference  what  the 
facts  themselves  show,  but  our  conclusions  will  depend  on  what 
we  hold  to  be  true  a  priori.  It  is  certain,  that  when  we  trace  back 
the  course  of  economic  development,  the  distance  traveled  from  the 
production  of  goods  to  their  consumption,  becomes  progressively 
shorter.  It  is  easy  then  to  represent  a  primitive  situation  where 
the  distance  between  production  and  consumption  has  been 
wiped  out ;  a  situation  where  production  and  consumption  coin- 
cide in  the  same  individual ;  where  there  is  no  movement  of  goods 
at  all ;  and  where  there  is  only  individual  satisfaction  and  seeking 
of  necessities,  as  Biicher  has  outlined  it.  What  can  be  simpler, 
what  can  be  more  primitive  than  that  situation  where  every  indi- 
vidual eats  raw  food,  and  where  only  animal  instinct  governs  to 
satisfy  necessities  limited  to  the  individual  and  to  the  moment? 
This  picture  of  a  primitive  economy  is,  however,  purely  specu- 
lative; it  is  not  the  simplest  economic  situation  which  actually 
has  existed ;  but  is  the  simplest,  the  most  primitive  arrangement 
which  can  he  thought  out.  But  the  most  primitive  economic 
state  cannot,  by  any  means,  have  had  its  basis  on  what  has  been 
thought  to  be  most  primitive.^ 


8.    Beginnings  of  Inheritance  Rights 

It  is  likewise  widely  accepted  that  in  the  lowest  stages  of  cul- 
ture, inheritance  of  private  property  does  not  obtain.  The  con- 
cepts, mine  and  thine,  cleave,  as  Biicher  assumes,  to  the  indi- 
vidual, and  perish  with  him.^  ... 

^  [Biicher  argues  that  to  limit  ethnological  investigation  to  the  lowest 
stages  of  culture  has  the  undesirable  effect  of  narrowing  the  point  of  view, 
and  that  a  reconstruction  of  institutions  is  possible  by  taking  into  account 
social  phenomena  appearing  among  developed  peoples  which  "can  only 
have  arisen  from  the  earliest  conditions  among  primitive  peoples."  The 
author  objects,  in  the  concluding  paragraphs  of  this  division,  that  this 
method  leads  to  the  acceptance  of  conclusions  regardmg  primitive  society 
which  can  not  be  demonstrated.  One  of  such  conclusions  is  the  theory 
of  individual  satisfaction  of  wants  which  is  not  discovered  in  fact  among 
the  most  imdeveloped  peoples.] 

2  Biicher,  "Entstehung  der  Volkswirtschaft,"  p.  10.  [See  to  the  same 
purpose:]  Wilutzky,  " Vorgeschichte  des  Rechts,"  II,  166. 


I 


Chap.  XXIV,  §  2.]  BARTER    AND    TRANSFER  449 

According  to  the  method  which  we  have  adopted,  the  question 
arises,  what  is  the  situation  as  to  inheritance  rights  in  the  lowest 
stages  of  social  development,  an  inspection  of  which  development 
is  still  possible?  We  may  here  recall  that  among  the  central 
Australian  tribes,  the  Warramunga,  Walpari,  Wulmala,  Tjingilli, 
Umbaia,  and  Binbinga,  all  the  things  of  a  dead  man  pass  to  the 
possession  of  men,  the  brothers  of  his  mother,  or  the  husbands  of 
his  daughter.  In  other  words,  everything  is  inherited  by  that 
half  of  the  tribe  to  which  his  mother  belongs.  The  wives  inherit 
only  the  digging-sticks.  It  is  customary  for  the  heirs  to  divide  the 
goods  among  others.  We  may  also  recall  that  there  is  a  regular 
movement  of  goods  between  different  tribal  groups  based  on  the 
event  of  death.  In  the  Warramunga  tribe,  for  example,  the  goods 
of  a  Tjunguri  go  to  a  Thakomara ;  those  of  a  Thakomara  to  a 
Thapanunga ;  those  of  a  Thapanunga  to  a  Tjambin ;  and  those 
of  a  Tjambin  to  a  Tjunguri.^ 

Among  the  Botocudos,  the  weapons  and  effects  of  the  dead  are 
not  consigned  to  the  grave.^  Among  the  Fuegians  the  relatives 
of  the  dead  divide  everything  which  he  possessed,  among  his 
friends.^  The  property  of  an  Andaman  Islander  goes  to  his  nearest 
relatives  who  within  a  short  time  divide  it  among  his  friends.'* 
Among  the  Negritos  the  wife  and  children  inherit.^  .  .  . 

Under  these  circumstances,  may  we  not  question  whether  the 
termination  by  death  of  private  ownership  is  a  part  of  primitive 
society  and  the  antecedent  of  the  right  of  inheritance?  It  seems, 
rather,  that  the  widespread  fear  of  death  which  reached  its  full 
development  in  later  times  with  the  belief  in  spirits,  brought  w^ith 
it  the  entire  renunciation  of  the  goods  of  the  dead,  and  that  this 
situation  belongs  to  a  somewhat  higher  stage  of  development. 

^Spencer  and  Gillen,  "The  Northern  Tribes,"  etc.  pp.  615-618;  [see 
ante  chap.  VII,  vol.  I,  p,.  234  seq.  —  "The  Urabunna  Tribe"]. 

2  See,  Ph.  M.  Rey,  "Etude  anthropologique  sur  les  Botocudos,"  Paris, 
1880,  p.  79;  Louis  Agassiz,  "Scientific  Results  of  a  Journey  in  Brazil," 
Boston,  1870,  p.  598. 

3  Hijadrs  et  Deniker,  "Mission  scientifique  du  Cap  Horn,"  1882-3, 
Tom.  VII,  "Anthropologie,"  "Ethnographie,"  1891,  p.  379;  Bridges, 
"Moeurs  et  Coutumes  des  Fuegiens"  in  "Bull,  de  la  Soc.  d'Anthrop.  de 
Paris,"  1884,  VII,  175;  Hyndes,  "Ethnographie  des  Fuegiens"  in  "Bull, 
de  la  Soc.  d'Anthrop.  de  Paris,"  1887,  X,  335. 

■•  Man,  "On  Andamanese  and  Nicobarese  Objects"  in  "Journ.  of  the 
Anthrop.  Inst."  XI,  London,  1882,  286;  and,  by  the  same  author,  "On 
the  Aboriginal  Inhabitants  of  the  Andaman  Islands,"  I.  c,  XII  (1883). 

*  Montana,  "Voyage  aux  Philippines,"  1886,  p.  71. 


450  THINGS  [Part  III. 


9.    Primitive  Communism 

According  to  the  view  which  we  have  rejected,  there  can  be  no 
such  thing  as  a  transfer  of  property  in  primitive  society  by  reason 
of  the  fact  of  communism.  Thus  Engels  speaks  of  "  the  primitive 
communal  household  of  a  number,  often  many  famihes."  "In 
earlier  stages  of  development,  there  could  only  be  occasional  trans- 
fers of  goods.  Special  skill  in  making  weapons  or  tools  might  lead 
to  a  transitory  division  of  labor.  But,  in  no  event,  in  this  stage, 
could  there  be  any  exchange  of  goods,  except  that  within  the  tribe, 
and  this  sort  was  exceptional."  The  development  of  pastoral 
tribes  first  leads  to  inter- tribal  barter.^  .  .  . 

The  term  communism  is  not  a  happ}'  designation  of  the  earliest 
economic  stage  known  to  us.  We  find  rather,  simply,  strictly 
regulated,  but  not  always  uniform,  distribution  of  articles  of  food 
in  certain  tribes,  whereby  wide  scope  is  left  for  undivided  private 
ownership  of  other  objects.  This  so-called  communism  is  by  no 
means  an  obstruction  to  the  movement  of  goods  in  the  tribes 
considered ;  but,  on  the  contrary,  is  a  conspicuous  example  of 
primitive  circulation  of  goods.  Indeed,  it  sometimes  results  in 
barter  transactions  which  are  made  obligatory  by  custom.  Still 
the  interpretation  of  primitive  economic  life  as  communism,  even 
though  highly  inexact,  strikes  nearer  the  truth  than  the  view  of  a 
stage  of  pure  individualism. 

Naturally,  when  we  compare  the  beginnings  of  the  transfer  of 
property  with  the  commerce  of  modern  societies,  we  arrive  at  a 
very  extended  meaning  of  the  idea  of  barter.  Modern  man  pro- 
duces almost  exclusively  to  satisfy  the  wants  of  others,  and  ex- 
change of  goods  is  effectuated  by  means  of  a  long  chain  of  inter- 
mediate exchange  transactions.  The  distance  between  producer 
and  consumer  is  a  great  one.  On  the  contrary,  in  rudimentary 
society  man  produces  more  largely  for  his  own  needs,  and  where 
there  is  exchange,  the  chain  from  producer  to  consumer  is  usually 
short.  Products  usually  go  directly  from  the  producer  to  the 
consumer.  Yet,  it  is  not  allowable  to  project  this  tendency  any 
farther  in   order  to  create  a  basis  of  construction  where  there  is 

^Engels,  "Der  Ursprung  der  Familie,  des  Privateigentums  und  des 
Staats,"  2  Aufl.,  Stuttgart,  1886,  pp.  20,  122.  For  the  error  of  the  notion 
of  primitive  communism,  ef.  Panckoiu,  "Betr.  u.  d.  Wirtsehaftsleben 
d.  Naturvolker,"  in  "Z.  d.  Ges.  f.  Erdkunde  zu  Berlin,"  1896,  XXI, 
188-90.  See  also  to  the  same  effect  as  Engels,  Letoumeau,  "L'evolution 
du  Commerce,"  Paris,  1897,  (Preface),  25,  527  ;  Lafargue,  "The  Evolution 
of  Property,"  London,  1905,  p.  43. 


Chap.  XXIV,  §  2.]  BARTER   AND    TRANSFER  451 

no  transfer  of  goods,  and  where  it  is  assumed  that  pure  individual 
satisfaction  of  wants  is  the  exclusive  situation.  .  .  . 


In  that  it  is  impossible  to  dispose  of  the  production  of  goods  by 
the  group  with  the  label  communism,  so,  also,  we  cannot  disregard 
the  movement  of  goods  within  the  group  between  individuals. 
The  group  which  appears  externally  as  a  more  or  less  isolated 
economic  unity,  and  which  various  authors  call  by  the  name 
tribe,  clan,  kindred,  and  most  frec^uently,  the  family,  is  a  compli- 
cated structure  made  up  of  a  variety  of  producing  and  consuming 
unities.  First  are  the  individuals  from  which  the  higher  economic 
form  of  the  group  is  formed.  Next  is  the  family  in  the  modern 
sense  {i.e.  man,  wives,  and  small  children)  which  is  an  addition  by 
way  of  a  special  economic  unity.  The  family  is  an  exclusive  eco- 
nomic institution  in  affairs  of  the  household,  but  it  has  a  closer  eco- 
nomic connection  and  a  narrow^er  economic  dependence  on  individ- 
uals than  the  group  which  circumscribes  the  family  as  a  superior 
economic  unity. 

It  is  not  legitimate  even  to  speak  of  collective  production  in 
the  family ;  for  also  within  the  family  the  individuals  are  indi- 
vidual producers  who  owe  duties  strictly  fixed  by  custom  of  giving 
parts  of  what  they  produce  to  certain  family  associates. 

The  primitive  economic  situation,  therefore,  cannot  be  disposed 
of,  either  with  the  acceptance  of  the  proposition  of  individual 
satisfaction  of  wants,  or  yet  with  the  catch-word,  communism  or 
collective  production.  We  can  assent  neither  to  an  economically 
isolated  individual,  nor  to  a  group  of  individuals  economically 
fused  together,  as  the  first  stage  of  social  development.  In  the 
earliest  period  of  society  we  already  have  to  do  with  a  compound 
economic  group,  constituted  of  mutually  dependent  economic 
individuals  and  smaller  economic  groups,  which  represents  the 
primitive  system  of  transfer  of  property. 


Chapter  XXV 

PLEDGE 

Section  1 
FORMS   OF   PLEDGE    RIGHTS  i 

1.  The  pledge  may  be  interpreted  in  two  ways,  and  has  taken 
on  two  fundamentally  different  forms  in  the  legal  systems  of  the 
nations.  The  object  of  the  pledge  may  serve  to  satisfy  a  debt, 
inasmuch  as  the  creditor's  claim  is  settled  with  it.  As  yet,  how- 
ever, nothing  final  has  occurred ;  for  the  debtor  still  has  the 
power  to  redeem  the  pledge,  and  until  the  question  of  redemption 
is  settled,  the  matter  remains  pending ;  but  this  does  not  prevent 
the  pledged  object  from  amounting  to  a  satisfaction.  It  is  so, 
if  it  is  the  aim  of  the  pledge  that  the  thing  shall  by  the  operation 
of  time,  become  the  property  of  the  creditor.  The  change  of 
ownership  takes  place  as  soon  as  the  redemption  term  has  passed. 
The  pledge  relation  may,  however,  assume  the  opposite  form, 
the  object  becoming  immediately  the  property  of  the  creditor, 
and  the  redemption  being  considered  an  act  of  re-purchase.  The 
matter  is  developed  still  somewhat  differently  if,  on  the  expiration 
of  the  term  of  redemption,  the  object  is,  indeed,  to  be  kept  by 
the  creditor,  but  that  he  is  to  make  settlement  with  the  debtor 
for  its  surplus  value.  In  this  case,  the  delivery  of  the  pledge  is, 
everywhere,  the  satisfaction  of  the  claim. 

2.  This  form  leads  to  the  second  fundamental  interpretation ; 
according  to  which  the  delivery  of  the  pledge  is  not  in  itself  satis- 
faction, but  merely  the  means  of  satisfaction.  If  the  creditor 
turns  the  pledge  into  money  and  pays  himself  with  it,  the  idea 
is  that  the  delivery  of  the  pledge  does  not  discharge  the  debt, 
but  that  only  the  acquisition  of  the  money  obtained  from  the 
pledge  operates  as  a  discharge.     Whereas,  according  to  the  pre- 

'  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

452 


I 


Chap.  XXV,  §  1.]  PLEDGE  453 

vioiis  view,  the  intrinsic  value  of  the  pledged  object  covers  the 
creditor,  so  that  afterwards,  at  the  most,  an  equalization  has  to 
be  made.  This  interpretation  requires  a  sale,  before  there  is 
satisfaction. 

This  latter  interpretation  has  become  so  predominant,  and  is 
so  general  in  modern  law,  that  we  scarcely  ever  think  of  the 
former  interpretation  until  studies  of  comparative  la\\  remind 
us  of  it.  It  was,  indeed,  distinctly  present  in  the  Geniianic  law, 
but  it  was  not  found  possible  to  include  it  under  a  larger  principle. 

3.  The  practical  difference  between  the  two  views  is  this : 
according  to  the  principle  of  satisfaction,  the  creditor  at  once 
takes  the  risk,  and  if  the  thing  is  destroyed,  he  cannot  make  a 
second  demand  on  the  debtor ;  for  the  surrender  of  the  thing  has 
settled  his  claim,  just  as  pa^anent  would  have  done.  The  thing 
is  the  creditor's  satisfaction ;  and,  if,  after  being  taken  it  is  de- 
stroyed, he  must  of  course  bear  this  loss ;  just  as  he  would  the 
loss  of  money  that  the  debtor  had  paid  him. 

The  second  view  is  entirely  different;  for  even  though  the 
creditor  holds  the  means  of  satisfying  himself,  yet  he  has  not  the 
satisfaction  itself.  Thus,  if  the  means  perishes,  the  debtor  must 
give  him  another  means  of  satisfaction.  The  possibility  of  satis- 
faction is  not  the  same  as  satisfaction. 

At  most  it  may  be  asserted  that  the  creditor  to  whom  the 
pledged  object  is  delivered  is  the  depositary  of  the  pledge,  and  is 
liable  as  such  ;  and  this  liability  can  then  be  more  or  less  extended, 
according  to  whether  he  is  regarded  as  a  remunerated  or  unre- 
munerated  depositary.  It  accords  with  the  nature  of  the  trans- 
action to  regard  him  as  a  remunerated  depositary,  as  the  delivery 
of  the  pledge  is  made  in  his  interest. 

Although  to-dAy  this  last  standpoint  is  universal,  a  few  frag- 
ments of  the  former  principle  have  remained,  as,  for  instance,  the 
principle  of  our  bankruptcy  law,  that  whoever  has  a  pledge  can- 
not bring  forward  his  whole  claim  at  the  meeting  of  the  creditors, 
but  only  the  amount  not  covered  by  the  pledge ;  and,  also,  the 
principle  in  civil  procedure,  that  whoever  has  a  pledge  right  can- 
not proceed  against  the  debtor  in  as  far  as  the  pledged  object 
affords  him  satisfaction,  etc. 

4.  A  second  important  division  of  pledges  is  into  pledges  de- 
livered into  possession  ("  Besitzpfand  "),  and  pledges  not  delivered 
into  possession  ("Xichtbesitzpfand").  In  the  first  case,  the 
pledge  is  delivered  into  the  creditor's  keeping,  so  that  he  is  not 
merely  legally  but  actually  secured.     In  the  latter,  the  debtor 


454  THINGS  [Part  III. 

retains  possession  of  the  thing,  and  the  creditor  is  more  or  less 
dependent  on  his  honesty. 

It  is  easy  to  understand  that,  in  early  times,  the  pledge  was 
commonly  delivered  into  the  creditor's  keeping,  because  the 
measures  of  the  law  were  weak,  and  confidence  in  dealing  was 
not  yet  firmly  established.  This  arrangement  was  also  desirable, 
because  the  transaction  was  then  made  public  to  a  certain  extent. 

On  the  other  hand,  it  has  the  great  disadvantage  that  the  debtor 
is  thus  deprived  of  the  use  of  the  thing :  this  may  possibly  bring 
his  business  to  a  complete  standstill.  Take,  for  instance,  the 
case  of  agricultural  implements  given  in  pledge,  without  which 
the  w^ork  of  the  farm  cannot  be  carried  on. 

And  this  is  not  only  a  disadvantage  to  the  debtor,  but  a  uni- 
versal economic  disadvantage ;  for,  as  the  debtor  cannot,  and 
as  the  creditor  will  not,  use  the  thing  —  and  the  latter  is,  perhaps, 
unable  to  use  it  in  most  cases  —  it  is  impossible  for  it  to  be  used 
at  all,  and  thus  humanity  is  deprived  of  the  service  of  often  very 
important  wealth. 

5.  This  can  be  remedied  by  allowing  the  creditor  to  use  the 
thing,  thus  making  it  a  usufructuary  pledge  ("Nutzpfand"). 
This  presupposes,  to  be  sure,  that  the  creditor  has  a  business  or 
establishment  in  which  the  pledge  can  be  used,  and  this  requisite 
obstructs  one  of  the  main  advantages  of  the  pledge :  the  abstract 
nature  of  its  value.  Nevertheless,  in  earlier  times,  when  all  the 
subjects  of  the  State  w^re  very  similarly  engaged,  this  was  more 
easily  accomplished ;  and,  in  particular,  where  agriculture  pre- 
dominates, it  is  very  appropriate,  if  a  pledge  consists  of  land  that 
it  be  given  over  to  the  use  of  the  creditor ;  in  which  case,  of  course, 
the  use  of  his  own  land  is  simply  extended  to  include  the  pledged 
property. 

This  usufructuary  pledge  has  played  a  great  part,  and  has 
served  to  make  money  fruitful,  and  to  weaken  somewhat  the 
prohibition  of  taking  interest :  the  creditor  had  the  use  of  the 
thing,  without  the  profits  of  this  use  being  deducted  from  his 
capital,  or  only  a  part  was  deducted,  and  the  remainder  com- 
pensated him  for  being  deprived  of  his  capital. 

This  form  of  the  pledge  is  less  practical  with  movable  things; 
at  least,  when  there  is  a  great  difference  between  the  occupations 
or  establishments  of  individuals,  so  that  it  is  more  or  less  a  chance 
whether  the  creditor  can  make  use  of  the  thing  pledged. 

6.  All  these  circumstances  have  contributed  to  bring  about 
an  arrangement  whereby  the  debtor  retains  possession  of  the 


Chap.  XXV,  §  1.]  PLEDGE  455 

pledge,  and  the  creditor  is  not  actually  but  only  legally  secured. 
When  the  State  has  attained  a  firm  development  so  that  the 
faithful  conduct  of  the  debtor  is  legally  assured,  no  great  obstacle 
will  oppose  this  arrangement ;  hence  it  developed  in  the  Orient, 
in  Greece  and  Rome,  as  well  as  in  Germany.  It  is  the  Roman 
"  hypotheca,"  and  the  newer  principle  of  German  law. 

Nevertheless  this  form  has  its  considerable  disadvantages, 
because  a  man's  financial  condition  is  thus  more  hidden  than 
formerly.  No  one  knows  what  is  pledged  and  what  is  not,  and 
thus  a  wild  chaos  of  legal  relations  arises,  from  which  escape  is 
only  possible  by  the  adoption  of  the  principle,  that  when  a  person 
acquires  a  pledged  thing  in  good  faith  it  is  freed  from  the  pledge. 
But  the  financial  condition  of  the  debtor  also  becomes  more  and 
more  uncertain.  The  man  who  is  supposed  to  be  well  oft'  is  per- 
haps already  overburdened  with  pledges ;  one  evil  involves 
another,  and  as  each  creditor  seeks  to  cover  himself  as  far  as 
possible,  each  will  endeavor  to  obtain  a  pledge  of  the  debtor's 
whole  property ;  in  this  way  the  economic  relations  become  more 
and  more  entangled. 

The  attempt  was  made  to  remedy  this  by  publicity,  so  that 
everyone  could  see  from  a  public  record  how  the  debtor's  credit 
stood.  This  proved  very  effective  in  respect  to  land ;  hence  the 
publication  of  mortgages  ("  Hypotheken  ")  was  adopted  in  Egypt, 
Greece,  and  later  in  Germany  and  in  all  Germanic  countries.  It 
has  not  been  found  as  practical  with  movable  things,  however. 
Two  systems  have  been  used,  either  the  system  of  keeping  public 
books,  which,  however,  can  only  suffice  where  mo\'ables  of  a 
certain  durability  are  concerned,  such  as  agricultural,  or  manu- 
facturing implements;  or  the  system  of  "marking"  pledge- 
objects  by  sealing,  etc. 

Another  disadvantage  that  arises  when  the  pledge  remains  in 
the  debtor's  possession  cannot,  however,  be  avoided  in  this  way : 
this  arrangement  furthers  the  debtor's  recklessness,  and  he  is  led 
to  overstrain  his  credit,  and  pledge  everything  that  can  be  pledged, 
as  he  suffers  no  inconvenience  at  the  moment,  and  the  "day  of 
reckoning"  does  not  come  till  afterwards. 

7.  The  pledge  is  not  now  turned  into  money  by  being  first 
given  into  the  creditor's  possession,  but  is  sold,  and  the  proceeds 
are  gi\en  to  the  creditor,  or  divided  among  them,  if  there  are 
more  than  one,  according  to  their  priority.  The  manner  of  sale, 
whether  by  private  sale  or  public  auction,  is  a  matter  of  legal 
technic  and  belongs  to  the  civil  law. 


456  THINGS  [Part  III. 

8.  A  later  development  displays  the  following  tendency :  A 
distinction  may  be  made  between  the  original  thing  and  the  thing 
as  it  exists  after  an  improvement  has  been  made  upon  it.  The 
improvement  {ameJioration)  can  only  become  separate  property 
when  it  is  actually  separable ;  as,  for  instance,  a  structure  built 
on  a  piece  of  land.  But,  if,  for  example,  the  land  has  gained  in 
value  owing  to  irrigation,  or  drainage,  the  improvement  cannot 
be  distinguished  from  the  rest ;  in  this  case,  the  improvement  is 
not  an  addition  but  an  internal  alteration.  On  the  other  hand, 
security  rights  ("  Wertrechte ")  may  attach  to  the  improvement, 
though  not  in  such  manner  that  the  right  of  security  embraces 
a  component  part  of  the  thing,  while  another  component  part 
remains  unaffected  ;  but  in  such  a  way  that  in  the  exercise  of  the 
right  of  security,  that  part  of  the  value  which  corresponds  to  the 
improvement,  falls  to  the  holder  of  the  security.  This  is  the  case 
w^ith  mortgages  on  improvements  ("Ameliorations-hypotheken"), 
and  they  exemplify  the  great  advantages  of  security  rights  which 
are  much  more  mobile,  and  conform  much  better  to  the  interests 
of  humanity,  than  the  more  rigid  rights  of  servitude. 

Section  2 

THE    PLEDGE    IDEA:     A    STUDY    IN    COMPARATIVE    LEGAL 

IDEAS  1 


The  pledge-idea  —  briefly  expressed,  that  of  collateral  security 
■ —  is  familiar  enough  in  modern  law.  But  it  is  distinctly  an  idea 
of  modern  times.  The  various  known  systems  of  law  recognize 
it  with  various  degrees  of  definiteness,  according  to  the  social 
stage  which  their  development  has  reached,  or  had  reached  when 
arrested.  The  idea  familiar  to  us  has  grown,  in  the  history  of  the 
law,  out  of  a  very  different  one.  The  attempt  here  will  be  to  go 
back  to  the  primitive  notion  of  that  transaction,  and  notice  its 
development  and  the  traces  it  has  left  on  the  law  as  handed  over 
to  us  in  its  later  stages. 

To  realize  the  root  notion  of  the  transaction,  we  may  put  our- 
selves in  the  place  of  the  primitive  traders  and  try  to  reconstruct 
the  conditions  of  their  traffic.  In  the  ordinary  case  of  barter 
between  passing  travellers,  or  at  the  monthly  or  half-yearly 
markets,  A  will  find  what  he  wants  in  B's  hands,  but  the  equivalent 

'  By  John  H.  Wigmore,  editor  ;  reprinted,  by  permission,  from  "Har- 
vard Law  Review,"  Vol.  X,  No.  6  (1897),  p.  321  seq. 


Chap.  XXV,  §  2.]  PLEDGE  457 

which  A  has  to  give  may  be  either  not  to  B's  Hking  in  kind  or  not 
of  proper  value.  They  must  and  will  make  a  provisional  trade  or 
pa\'ment,  B  taking  something  of  A's  that  will  induce  him  to  sell, 
but  A  having  the  privilege  of  substituting  later  an  equivalent  not 
now  available.  So,  too,  when  A  has  injured  B,  and  B  seeks  self- 
redress  by  his  own  hands,  A  may  be  able  to  buy  off  B  by  handing 
over  whatever  he  has  that  is  available,  but  subject  to  the  right  of 
subsequent  substitution  of  something  more  nearly  an  equivalent.  In 
short,  all  transactions  of  the  sort  must  be  cash  transactions,  be- 
cause there  is  no  credit.  We  know  that  the  absence  of  credit  is  a 
feature  of  the  times,  both  from  the  ethnological  study  of  primitive 
surviving  communities,  and  from  the  fact  that  credit  presupposes 
a  use,  legal  or  moral  (customary),  of  the  force  of  the  community, 
which  is  wholly  inconsistent  with  the  private  redress  notions  of 
primitive  times. ^  One  must  try,  moreover,  to  realize  this  absence 
of  credit  subjectively ;  i.e.  to  remember  that  the  seller  or  claim- 
holder  is  not  willing  to  go  away  from  the  spot  leaving  the  matter 
unsettled,  and  trusting  to  (crediting)  the  other's  future  action; 
he  is  going  to  get  something  then  and  there  in  satisfaction,  and 
the  best  allowance  that  the  would-be  borrower  or  the  tortfeasor 
can  obtain  is  that  the  settlement  shall  be  provisional  in  his  favor, 
i.e.  the  res  given  over  shall  be  open  to  future  redemption.  The 
cardinal  feature  of  the  transaction  is,  then,  that  the  party  whom 
we  should  call  the  creditor  goes  away  with  nothing  left  to  claim, 
though  the  (as  we  call  him)  debtor  has  a  right  of  redemption 
against  the  other. 

We  shall  be  better  able  to  appreciate  the  primitive  state  of 
mind  if  we  remember  that  in  at  least  four  important  bodies  of  law 
and  language  the  primitive  word  for  the  ideas  of  "pledge,"  "bet" 
(or  "forfeit"),  and  "promise,"  was  substantially  the  same.  In  the 
Scandinavian  we  have  vaed,  ved.-  In  the  Germanic  we  have  ivetti, 
wette,  ivedde,  vadi-um,  guadi-um,  and  (by  sliding  the  di  into  ji) 
wage,  guage,  gage.^     In  the  Latin  we  have  pignus  in  the  first  two 

'  Gold  Schmidt,  "Handelsreeht,"  I,  29,  20:  "In  its  first  stages  all  circu- 
lation of  goods  is  done  by  barter.  ...  In  the  Germanic  tribes,  in  North 
Germany  even  into  the  1.5th  century,  trade  on  credit  is  scanty."  Com- 
pare the  following  recital  of  11.50  a.d.  :  "Vinum  mihi  vendidit.  .  .  . 
Non  habens  igitur  admanum  pecuniam,  censum  quendam  ...  in  vadi- 
monio  ei  deposui"  (Kohler,  120).  Compare  the  ways  in  which  both 
Franken  (213)  and  Heusler  (II,  131)  posit  this. 

-  Amira,  " Nordgermanisches  Obligationen-recht,"  I,  §§  28-31;  II, 
§22. 

^  Mcihom,  "Deutsches  Pfandrecht,"  24:  Val  dc  Lierre,  "Launegild 
und  Wadia,"  97  ff. ;  Diez,  "Worterbuch  der  Romanischen  Sprachen," 
s.  V.  "Gaggio."     Our  modern  word  "forfeit"  (i'ori'Cf/ja)  preserves  closely 


458  THINGS  [Part  III. 

meanings,  and  from  the  same  root  {irr^'yvvixL)  pango,  pag,  pact-um, 
in  the  third  meaning.  In  the  Greek,  the  verb-stem  Oer-  (put) 
has  all  three  meanings.  It  is  not  merely  that  the  words  for  the 
three  ideas  were  the  same  ;  it  is  much  more  than  that ;  there  ivas 
only  one  idea  for  what  we  now  distinguish  as  three.  That  is,  the 
transactions  which  we  now  distinguish  as  pledge,  forfeit,  and  prom- 
ise, were  then  not  distinguished  at  all,  and  only  differentiated  them- 
selves later  and  gradually.  We  may  get  some  slight  notion  of  the 
unity  by  noticing  how  to-daj'  we  ourselves  say,  "  I  pledge  you  my 
word,"  and  "He  pledged  his  watch"  (thus  using  one  word  for  the 
jBrst  and  third  notions) ;  or,  "  I  stake  my  honor  upon  it,"  and  "  He 
held  the  stakes"  (using  thus  one  word  for  the  second  and  third 
notions) ;  or  how  the  Germans  say  "pfand"  for  the  first  notion, 
and  "  pfandspiel"  for  a  game  of  forfeits.  But  of  course  with  us 
the  ideas  are  still  different,  though  the  words  may  coincide ;  while 
with  the  primitive  speaker  the  one  root  represented  the  same  gen- 
eral notion.  We  can,  however,  describe  the  past  only  in  terms  of 
our  own  notions;  and,  in  fixing  on  the  idea  which  most  nearly 
represents  to  us  the  essence  of  the  primitive  notion,  we  find  the 
second  one  to  be  the  chief  and  suggestive  one,  i.e.  "bet,"  or,  more 
closely,  "forfeit."  The  "forfeit"  idea  is  the  important  one,  be- 
cause, first,  out  of  it  the  other  two  seem  to  have  developed,  and, 
next,  it  brings  out  most  clearly  the  contrast  between  the  original 
and  the  modern  idea  of  the  transaction  which  we  now  call  "  pledge." 
The  "promise"  idea  developed  by  transferring  the  moral  emphasis 
from  the  fact  that  the  transaction  was  settled  to  the  fact  that 
it  was  only  provisionally  settled  ;  the  "forfeit"  itself  was  used  as  a 
mere  form,  and  was  subordinated  in  idea  to  that  which  it  came  to 
mark,  i.e.  the  debtor's  duty.^ 

the  ved  and  the  wctte  form,  as  does  ^'bet"  {pace  the  Century  Dictionary) 
less  clearly;  while  ''wager"  follows  the  guagium  development.  In 
Scotland,  in  the  1600's,  wed-sctten  was  still  the  generic  word  for  a  mort- 
gage :  Skene,  "  De  Verborum  Significatione,"  s.  v.  "  Vadium  "  (1641).  _  Cu- 
riously enough,  there  is  a  similar  coincidence  in  the  verb  used,  which  is 
usually  a  synonym  of  "put";  saetia  in  Gothic  and  Icelandic,  setzen  in 
German,  ponere  in  Latin,  Tidr)iJ.i  in  Greek,  ire  in  Japanese. 

^  The  connection  of  the  wadimn  with  the  promise  idea  is  no  part  of  the 
present  subject ;  but  a  reminder  of  the  probable  features  of  its  develop- 
ment ^vill  perhaps  make  more  clear  the  unity  of  the  primitive  root-notion. 
We  may  assume  (though  this  has  been  disputed)  that  it  is  the  infra- 
judicial  wadium  promise  which  was  first  recognized,  and  therefore  is  the 
process  to  be  explained.  This  puts  before  us  the  case  of  a  defendant 
against  whom  judgment  is  given  by  the  assembly  ;  he  finds  himself  ordered 
to  pay.  How  shall  he  pay?  There  is  no  credit;  present  satisfaction, 
provisional  or  final,  is  all  that  creditors  of  that  time  take.  There  are 
three  primitive  ways  of  gi^^ing  satisfaction.  One  is  by  handing  over 
property ;  this  is  simple  enough.  Another  is  by  self-surrender,  working 
out  the  debt  if  possible.     A  third  is  by  handing  over  the  body  of  a  rela- 


Chap.  XXV,  §  2.]  PLEDGE  459 

On  the  other  side,  the  "pledge"  or  "collateral  security"  idea 
developed  by  a  similar  transfer  of  emphasis  where  the  res  handed 

live ;  this  is  natural  enough  from  the  debtor's  point  of  view,  such  is  the 
sohdarity  of  family  responsibility ;  from  the  creditor's  point  of  view 
it  is  equally  natural,  for  his  ultimate  hold  on  the  family  property  or  the 
corporal  servitude  of  the  surety  (geisel,  pleige,  fidejussor)  is  ample ;  and  it 
is  even  a  question  whether  this  payment  by  corporal  surety  was  not  the 
most  natm-al  early  form.  At  any  rate,  it  would  be  so  where  a  judicial 
sentence  of  the  assembly  was  to  be  satisfied  ;  for  property  enough  the 
debtor  has  jiroliably  not  with  him,  and  his  own  freedom  he  needs  in  order 
to  collect  what  will  pay  his  creditor.  He  therefore  offers  one  or  more  of 
his  relatives  as  provisional  satisfaction.  A  common  form  (now  accepted  as 
authentic)  for  this  was  :  the  debtor  hands  a  stick,  a  glove,  etc.,  as  his 
wadium,  to  the  creditor,  bringing  forward  at  the  same  time  the  fidejussor, 
and  the  creditor  passes  the  wadium  to  the  fidejussor.  The  problem  is 
to  explain  this  process.  A  question  which  all  the  theories  have  to  answer, 
viz.  how  the  wadium  came  to  be  a  mere  valueless  artieje,  is  here  answered 
by  pointing  out  that  the  fidejussor  was  the  real  payment,  —  not  a  surety 
in  our  modern  sense,  but  the  substantial  substitute  for  present  payment, 
and  the  real  reliance  of  the  creditor.  Another  question  next  occurs : 
Why  have  the  stick-wadium  at  all?  Why  not  merely  hand  over  the 
pleige  without  the  other  formality?  In  fact,  we  do  not  find  the  inter- 
vening stick-ivadium  in  all  primitive  laws,  —  not  in  the  Roman,  for 
example,  although  we  do  find  the  human  pledge.  But  there  seem  to  be 
two  good  reasons  which  account  for  it  in  the  Germanic  law.  One  is,  that, 
as  the  typical  transaction  of  provisional  payment  in  every-day  life  in- 
volved the  handing  over  of  some  res  on  the  spot  to  the  creditor,  it  was  en- 
tirely natural  that  this  part  of  the  process  should  persist  in  form  at  least. 
Another  is  that  the  handing  of  the  wadium  to  the  pleige  made  it  possible 
for  him  to  get  redress  against  the  original  debtor  if  he  subsequently  left 
the  pleige  to  suffer.  The  debtor  could  not  be  thought  of  as  subject  to 
a  levy  from  another  unless  the  other  had  some  mark  of  a  creditor ;  and 
the  surety  would  be  content  with  a  wadium  of  nominal  value  (as  the 
creditor  would  not),  because  family  feeling  would  compel  the  debtor  to 
redeem.  Thus,  the  wadium  was  handed  to  the  creditor  as  a  formal, 
though  worthless  payment,  freeing  the  debtor ;  then  the  pleige  surren- 
dered himself  to  the  creditor,  and  thus  liberavit  wadium,  taking  it  himself. 
In  later  times,  the  personal  surety  dropped  out  of  the  transaction,  because 
it  was  no  longer  in  harmony  ^vith  social  conditions,  and  because  credit 
had  developed,  while  the  imdium  stick  or  glove  remained  associated  in 
form  with  the  idea  of  plighted  faith. 

Three  facts  in  particular  seem  to  narrow  down  the  explanation  of  the 
process  to  something  like  the  above:  (1)  The  wadium  was  the  regular 
and  proper  accompaniment  in  judgment  promises,  but  was  casual  only 
in  extra-judicial  promises,  —  indicating  the  former  as  the  home  of  the 
form ;  (2)  the  debtor  Jiad  to  give  a  substantial  substitute  for  payment, 
either  property  or  self  or  relative ;  he  was  primitively  never  let  off  with  a 
mere  form,  —  indicating  that  the  ivadium  would  never  have  been  allowed 
to  become  a  res  of  trifling  value  if  it  had  not  been  accompanied  by  other 
sufficient  ^'alue ;  and  (3)  in  the  judgment-promise  with  wadium  the 
pleige  always  accompanied  it,  indicating  that  it  was  the  presence  of  the 
substantial  pleige,  which  allowed  the  wadium  to  become  of  mere  nominal 
value  and  paved  the  way  for  its  becoming  a  conventional  form. 

The  foregoing  attempt  to  restate  the  origin  of  the  wadium  promise  is 
of  course  based  only  on  tlie  material  that  has  been  pulilished  by  the  va- 
rious workers  in  that  field  (Sohm,  Brunncr,  Stobbe,  Heusler,  Franken, 
Val  de  Lie\Te,  Esmein.  Wodon,  etc.) ;  but  none  of  the  theories  hitherto 
(except  Heusler's)  seem  to  have  taken  into  account  the  original  unity  of 
the  wed-idea,  from  which  the  three  branches  developed,  and  a  restatement 
from  that  point  of  view  seems  to  explain  certain  facts  otherwise  unac- 
counted for.     The  above  statement  is  substantialb'  Heusler's. 


460  THINGS  [Part  III. 

over  remained  of  substantial  value ;  i.e.  the  idea  that  it  was  pro- 
visional led  to  the  disappearance  of  the  "forfeit"  idea;  the  origi- 
nal claim  became  ultimately  the  measure  of  the  parties'  rights,  and 
therefore  the  debtor  could  no  longer  throw  the  creditor  exclusively 
on  the  res  for  satisfaction,  nor  could  the  creditor  keep  it  all  in  case 
of  default.  It  is  this  progress  from  the  idea  of  forfeit  to  the  idea 
of  collateral  security  which  we  are  to  keep  in  mind  as  the  general 
feature  of  our  present  subject ;  and  we  may  now  proceed  to  the 
evidence  that  this  was  in  fact  the  course  of  development  of  this 
legal  idea. 

The  varied  aspects  of  the  subject  and  the  richness  of  the 
material  make  it  necessary  to  keep  within  narrow  bounds.  .  .  . 
It  is  enough  to  trace  the  mam  idea,  and  to  distinguish  the  various 
transactional  forms  that  throw  light  on  it.     The  topics  will  be :  — 

I.  The  Forfeit  idea,  in  general,  as  the  forerunner  of  the  Col- 
lateral-Security idea.  11.  The  Hypothec  (pledgor's  possession)  as 
distinguished   from   the   ordinary   Pledge    (pledgee's  possession). 

III.  The  Sale  for  Re-Purchase,  as  distinguished  from  the  Pledge. 

IV.  The  Vifgage  as  distinguished  from  the  Mortgage. 

After  noting  the  development  of  the  idea  in  the  legal  systems 
which  furnish  the  richest  materials  for  examining  different  stages 
of  the  law,  the  Germanic  and  the  Scandinavian,  we  may  then  ex- 
amine what  evidence  there  is  in  other  systems,  —  Jewish,  Moham- 
medan, Egyptian,  Chaldean,  Slavic,  Hindu,  and  Japanese ;  leaving 
to  the  last  the  Greek  and  the  Roman,  as  presenting  peculiar  diffi- 
culties, and  the  French,  as  involving  an  acquaintance  with  the 
Roman.^ 

1  Until  Heuslcr,  the  true  significance  of  the  Germanic  pledge  law,  in 
spite  of  much  research  and  discussion,  seems  not  to  have  been  appre- 
ciated. In  1867,  von  Meibom  had  established  the  chief  data  so  as  to 
clear  away  most  previous  errors  of  fact ;  but  he  saw  in  the  transaction 
only  an  "exchange,"  and  this  prevented  him  from  understanding  the 
complete  relation  of  the  facts  and  their  historical  changes,  and  it  particu- 
larly misled  him  as  to  the  h.vpothec.  In  1882,  von.  Amira  clearly  worked 
out  the  chief  data  for  Swedish  Scandinavia.  But  Heusler  (in  his  Institu- 
tionen,  1886)  was  the  first  to  advance  the  forfeit-theory  for  Germanic 
law,  and  to  state  all  its  bearings,  and  his  analysis  (though  accompanied 
by  little  evidence)  is  irresistible  in  its  plausibility  and  its  harmony  with 
the  evidence  elsewhere  abundant.  The  statement  in  the  following  pages 
is  substantially  an  adaptation  of  Heuslcr' s  theory ;  though  the  mode  of 
presentation  is  different,  and  his  theory  is  not  to  be  held  responsible  for 
all  the  arguments  here  advanced  in  its  support  (especially  as  to  the  rela- 
tion between  the  auflnssun(j-Q\sM?>e  and  the  evasion  of  the  duty  to  restore 
the  surplus,  which  does  not  seem  to  have  attracted  his  attention).  Al- 
most all  of  the  passages  quoted  in  illustration  have  been  culled  for  the 
present  purpose  from  earlier  publications  whose  authors  knew  nothing 
of  the  forfeit-theoi'y. 

In  1895,  von   Amira  (in  his  second  volume),  writing  in  the  light  of 


Chap.  XXV,  §  2.]  PLEDGE  461 

Germanic  and  Scandinavian  Law^ 

I.    The  Forfeit  Idea,  in  general 

If  the  idea  above  described  was  that  which  marked  the  transac- 
tion of  primitive  times,  —  the  idea  of  forfeit  or  provisional  satis- 
faction, —  what  would  be  some  of  the  legal  consequences  in  the 
relations  of  the  two  parties  ?  Certain  main  features  would  surely 
be  found. 

A.  1.  If  the  pledgor  chooses  not  to  paj'  (redeem),  the  pledgee 
cannot  compel  him ;  he  looks  exclusively  to  the  res  for  payment ; 
it  is  a  provisional  payment.  Hence :  a.  the  pledgee  cannot  sue 
the  pledgor,  inasmuch  as  the  res  is  his  payment ;  b.  the  pledgee 
has  no  redress  if  the  res  perishes  by  accident ;  c.  the  pledgee  has 
no  redress  if  at  the  maturity  of  the  period  the  res  has  become  less 
in  value  than  the  original  claim,  or  on  being  sold  leaves  a  deficit. 

2.  The  pledgee,  while  thus  having  the  detriment  arising  from 
the  res  being  a  payment,  has  also  the  advantage ;  for  on  default 
the  res  becomes  his  in  toto,  i.e.  he  is  not  bound  to  restore  the  sur- 
plus value. 

B.  Along  with  these  features,  but  not  peculiar  to  this  trans- 
action, is  another,  whose  steps  of  development  have  to  be  noted 
in  order  to  distinguish  them  from  the  preceding  features,  and  to 
explain  later  problems,  i.e.  the  feature  of  defect  of  absolute  title, 
due  to  the  fact  that  the  transfer  of  the  res,  being  provisional 
only,  lacked  the  auflassung  or  final  abandonment  of  right  by  the 

Heusler's  published  view,  found  it  amply  confirmed  and  proved  it  to  be 
the  key  to  the  West  Scandina\'ian  development.  But  outside  of  these 
two  fields,  the  forfeit-idea  as  the  key  to  the  history  of  the  pledge-idea  seems 
never  to  have  been  advanced  for  any  system  of  law,  not  even  for  the 
Roman  ;  and  it  wUl  be  the  purpose  of  a  later  article  to  test  its  validity  for 
other  systems. 

^The  references  that  follow  are  to  these  works:  1855,  Stobbe,  "Deut- 
sches  Vertragsrecht "  ;  1875,  /d.,  "Deutsches  Privatrecht,"  II,  1 ;  1865, 
Neumann,  "Geschichte  des  Wuchers  in  Deutsehland  "  ;  1867  v.  Meibom, 
"Deutsches  Pfandrecht "  ;  1867,  Sohm,  "Prozess  der  Lex  Salica"  (tr. 
Thevenin)  ;  1875,  Id.,  "Recht  der  Eheschliessung" ;  1873,  Schulte, 
"Lehrb.  der  Deutsches  Reichs-und  Rechtsgeschichte"  ;  1874,  Endemann, 
"Roman.-Kanon.  Wirthsch.-  u.  Rechtslehre"  [really  "Die  Wueherlelire"]  ; 
1877,  Val  de  Lievre,  "Launegild  und  Wadia"  ;  1879,  Franken,  "Franzos- 
isches  Kandreeht  im  Mittelalter"  ;  1880,  Brunner,  "Rechtsgeschichte  der 
Romischen  und  Germanischen  Urkunden"  ;  1892,  Id.,  "Deutsche  Rechts- 
geschichte"; 1881,  Weisl,  "Deutsches  Pfandrecht  bis  zur  Reception;" 
1882,  Kohler,  " Pfandrechtliche  Forschungen "  ;  1883,  Esmein,  "Etudes 
sur  les  Contrats  dans  le  tres-aneien  droit  frangais  "  ;  1885-86,  Heusler, 
"Institutionen  des  Deutschen  Privatrechts"  ;  1893,  Wodon,  "La  Forme 
et  la  Garantie  dans  les  contrats  francs"  ;  1882-95,  v.  Amira.  "Xordger- 
manisehes  Obligationenrecht :  I.  Altschwedisches  R. ;  II.  Westnordisches 
R." 


462  THINGS  [Part  III. 

pledgor.  Even  after  default  at  the  time  appointed  for  redemp- 
tion, the  pledgee's  title  still  has  this  defect ;  and  while  the  other 
features  are  passing  into  their  later  stages,  we  here  find  the  pledgee 
successfully  endeavoring  to  remedy  this  defect;  it  is  this  process 
that  has  to  be  carefully  distinguished  from  the  others. 

To  take  up  the  e\'idence. 

A.  1.  a.  No  personal  action  for  the  pledgee  against  the  pledgor.^ 
In  the  first  place,  the  documents  usually  do  not  (as  our  modern 
ones  do)  mention  any  obligation  of  debt  as  arising  from  or  accom- 
panying it;-  e.g.  "we  have  pledged  the  manor  of  Blackacre  for 
100  marks."  Furthermore,  the  early  documents  expressly  speak 
of  the  transaction  as  a  "payment,"  i.e.  extinction  of  a  claim.^ 
Finally,  some  laws  particularly  mention  the  pledgee's  inability  to 
treat  the  claim  as  surviving.^  Strong  light  is  also  thrown  by  the 
analogy  of  the  transaction  which  we  now  call  personal  suretyship. 
The  fidejussor  (as  already  mentioned)  comes  to  the  front  in  the 
development  of  the  legal  promise  through  the  wadia,  and  the 
notable  thing  about  his  function  is  that  the  wadia  is  first  given, 
and  then  the  giving  of  the  fidejussor  pays  and  frees  the  wadia;  as 
in  the  much  discussed  passage  of  Liutprand,  37  (Lombard) :  "  si 
wadiam  dederit,  et  antequam  eam  per  fidejussorem  liberit,"  etc. 
Furthermore,  the  whole  notion  of  the  fidejussor  was  that  he  freed 
the  debtor,  and  stepped  into  his  place  just  as  a  res  would ;  thus, 
in  the  Frankish  law,  the  debtor  "liber  erit,  si  fidejussor  moritur" ; 


1  Meibom,  274  ff. ;   Heusler,  II,  132,  133 ;   Kohler,  99,  100,  137. 

2  Ibid.,  276. 

^  '''Cum  in  solutionem  dietaruin  500  marearum  .  .  .  turn  in  recom- 
pen sationem  damnorura  .  .  .  castrum  .  .  .  pro  1000  mareis  obligavimus " 
{Meibom,  278) ;  "pro  ipsa  causa  solidus  tantus  in  pagalia  mihi  dare  debu- 
eras,  quos  et  in  praesenti  perwadio  tuo  visas  es  transolsisse"  (Wodon,  122) ; 
"per  suum  wadium  ipsas  res  .  .  .  reddidit"  {Id.  108),  and  of  course  the 
phrases  "per  wadium  meum  componere"  and  "cum  uno  wadio  emendare" 
were  common  ones  for  the  process  of  payment  by  wadium;  "ducentas 
libras  HoUandenses  ad  [dotem]  dicte  Aleidis  promisimus  conferendas,  et 
pro  solutione  dicte  pecunie  eidem  obligavimus  decimas  segetum  et  minutas 
deeimas"  {Kohler,  52;    this  is  as  late  as  1269). 

*  "I'When  one  man  sues  another  for  a  sum  of  money  and  the  other  an- 
swers, 'I  deny  him  not  the  sum  which  he  claims,  but  he  has  a  pledge  from 
me  [for  it],'  .  .  .  the  former  shall  use  it  [the  res],  and  the  latter  shall  re- 
main harmless,  and  the  former  shall  sell  the  pledge,  as  is  right"  (Bayr. 
Landr.  240;  quoted  Meibom,  422).  A  Lombard  commentary  on  the  fol- 
lowing formula,  "Cujus  placiti  vadimonia  (per  usum)  debent  esse  cum 
fidejussoribus  tacita  pena,"  says:  ["If  the  debtor  does  not  come  to  trial 
as  thus  pledged,]  nou  est  intelligendum  ...  is  rem  unde  agitur  debeat 
amittere ;  immo  .  .  .  intelligendum  est  quod  penam  wadie  debeat 
solvere"(FaZ  de  Lievre,  142);  and  the  pains  thus  taken  by  the  later 
scribe  to  assert  that  the  debtor  could  not  get  off  by  letting  his  pledge  be 
forfeited  show  that  the  contrary  notion  had  prevailed  and  was  to  be 
combated. 


Chap.  XXV,  §  2.]  PLEDGE  463 

the  creditor  could  not  sue  the  original  debtor/  and  it  was  only  in 
later  times  ^  that  he  had  his  choice  between  the  debtor  and  the 
fidejussor;  while  the  question  whether  he  must  first  seek  the 
debtor  before  suing  the  surety  is  an  essentially  modern  one. 
Again,  the  fact  that,  in  later  times,  when  other  debts  were  in- 
herited, the  liability  of  the  fidejussor  was  not,^  (witness  the  maxim, 
"le  pleige  mort,  la  pleigerie  meurt,")  is  apparently  best  explained 
by  the  notion  that  his  person  was  simply  paid  over  to  the  creditor, 
like  a  res,  in  liberation.'* 

The  progress  to  the  later  stage,  in  which  the  liability  is  recog- 
nized as  independent  of  the  pledge,  came  through  express  contract, 
i.e.  if  there  had  been  an  express  promise  (gelobet)  of  liability,  the 
res  became  merely  collateral  to  that.^ 

1.  b.  Xo  claim  for  the  pledgee  if  the  res  perishes  by  accident. 
This  feature  was  long  a  matter  of  dispute ;  but  the  work  of  ]Mei- 
bom  and  of  Heusler  has  explained  all  the  difficulties,  and  settled 
beyond  a  doubt  the  question  of  fact.^    The  fact  is  equally  clear 

1  Esmein,  85;  Heusler,  II,  §  126.  Sohm  ("Eheschliessung,"  38,  n.  38) 
offers  the  forced  explanation  that  "the  surety,  because  he  last  received 
the  wadium,  is  thus  the  first  in  liability"  ;  but  it  is  clear  that  he  admits 
in  effect  the  fact  of  the  hberatory  function,  for  he  had  already  said  ("La 
Procedure  de  la  Lex  Saliea,"  ed.  Thevenin,  App.  I,  and  §  5)  :  "La  con- 
trainte  procedurale,  a  laquelle  donne  lieu  le  refus ,  s'exerce  principalement 
contre  le  fidejusseur,  et  non  centre  le  debiteur"  ;  when,  moreover,  he  says, 
^'Le  debiteur  principal  reste  lie  vis-a-vis  du  creancier;  mais  Taction  du 
creaneier  est  dirigee  contre  le  fidejusseur,"  the  first  statement  can  hardly 
be  correct  if  the  second  is,  and  the  law  indorses  the  second.  As  late  as 
the  "Schwabenspiegel"  (285  b,  quoted  in  Stobbe)  we  find  a  rule  that  if  a 
pledged  animal  dies,  the  creditor  has  no  claim  for  the  debt,  unless  there  is 
a  surety ;  which  shows  how  the  surety  was  assimilated  to  a  res  substituted 
for  the  claim. 

^  Stobbe,  124-12Q.  ^  Esmein,  145;   5to6&e,  "Vertr."  132,  195. 

■•  Another  significant  notion  of  the  Middle  Ages  is  the  "tavern  right" ; 
by  which  the  tavern  keeper  was  obliged  to  set  out  di-ink  not  only  for  money 
offered,  but  for  pledges  offered,  provided  they  exceeded  the  drink  value 
bj'  a  certain  ratio;  the  pledge  is  payment,  and  the  tavern  keeper  "may 
re-pledge  it  for  the  claim,  and  shall  notify  the  debtor  that  he  may  redeem 
it,  if  he  wishes,  at  the  place  where  it  has  been  re-pledged"  {Kohler,  13). 

5  In  the  later  records,  the  independent  sur\'ival  of  the  debt  is  of  course 
fully  recognized,  although  this  does  not  necessarily  indicate  that  the 
creditor  could  look  to  the  pledgor  personally.  Roughly,  there  are  three 
stages  :  (1)  to  pay  off,  per  wadium  componere,  the  pure  forfeit  idea,  and 
no  notion  of  debt  sur\ival ;  (2)  to  pay  pro\isionally,  the  debt  survi\ing, 
but  the  res  being  the  creditor's  sole  resort  for  payment ;  (3)  to  secm-e  in 
a  purely  collateral  way.     See  post. 

8  Significant  passages:  "  Sachsenspiegel,"  III,  5,  §  5:  "[If  a  pledged 
animal  dies  ^\^thout  the  creditor's  fault,  the  creditor]  ne  gilt  es  nicht ; 
he  hevet  aber  verloren  sein  gelt,  dar  it  ime  vor  stund,  [for  it  stood  in  its  place 
to  him]"  ;  "Prague  Rechtsb."  166:  "Er  gilt  sein  nicht;  er  hat  aber  ver- 
loren sein  gelt"  ;  "  Ledebach  Privil."  :  "  [If  a  pledged  house  burns  down,] 
si  vero  domum  suam  redificare  [sc.  pledgor]  non  voluerit,  quod  remansit 
de  igni  cum  possessione  dat  illi  cujus  vadimonium  prius  fuorat,  et  sic  se 
absoluat ;   creditor  postea,  quantumcumque  debiti  superest,  ?iihil  amplius 


464  THINGS  [Part  III. 

in  Scandinavian  law.^  This  rule  points  clearly  to  the  notion  that 
the  res  is  provisional  payment.  If  the  pledgee  had  been  merely 
compelled  to  deduct  its  value  from  his  claim,  this  result  might 
well  have  been  explainable  on  some  theory  of  a  counter-liability  on 
his  part  as  bailee  of  the  res.  But  the  treatment  of  the  res  and 
his  claim  as  equivalent  shows  clearly  how  the  res  is  regarded  as 
measuring  the  claim,  as  representing  it,  as  having  in  effect  paid 
it  by  forming  the  sole  resort  of  the  pledgee  for  satisfaction.^ 

h'.  The  next  stage  is  reached  by  the  aid  of  an  express  contract ; 
i.e.  the  pledgee  can  claim  nothing,  unless  the  debtor  has  otherwise 
promised  (in  the  common  phrases,  "ere  vorwort  ne  sy  anders," 
"ire  gelovede  ne  stunde  [settle]  den  anders").  This  is  the  first 
step  towards  getting  away  from  the  primitive  rule ;  the  step 
being  taken,  of  course,  at  different  times  in  different  communities.^ 

h" .  Finally,  that  which  at  first  needed  to  be  expressly  pro- 
vided for  in  the  contract  becomes  the  general  rule  without 
express  provision,  and  the  accidental  loss  of  the  res  does  not  bar 
the  pledgee's  action.* 

ah  eo  extorquere,  secundum  nostram  justitiam,  possW  {Schulte,  500); 
"  Statuta  Susatica  "  :  "...  relinquet  creditor!  reliquias  incendii  vel  ruine 
et  fundum  pro  pignore,  sic  creditor  nil  amplius  potest  peter e''  (Kohler, 
114).  The  passages  are  collected  in  Meibom,  283,  426;  Kohler,  19,  111- 
115;  Heusler,  11,202;  Weisl,  61;  Stobbe,  "Vertr."  263-5.  "Ein  Haus, 
ein  Brand"  was  a  proverb  implying  that  the  risk  of  fire  was  on  the  pledgee  : 
Chaise  martin,  "  Proverbes  et  Maximes  du  droit  germanique,"  223  (1891). 
For  an  explanation  of  the  difference  between  this  risk  of  loss  of  his  claim 
through  provisional  payment  and  the  creditor's  burden  of  risk  as  a  bailee, 
see  post. 

^  Amira,  I,  213;   II,  §  22. 

2  This  notion  occasionally  finds  express  mention  in  the  documents : 
"Verloren  se  [pledgee]  aver  edder  ere  ammechtlude  dat  slot  [castle]  van 
wanhuede  edder  van  unlukke,  des  god  nicht  en  wille,  so  scholden  se  ere 
gheld  in  deme  slote  unde  we  dat  slot  verloren  hebben"  {Kohler,  114);  in 
another  document  the  pledgor  promises  to  help  the  pledgee  recover  the 
castle  if  he  should  be  spoiled  of  it,  but  if  the  castle  should  not  be  recov- 
ered, "so  scholet  ze  [pledgee]  dat  ghelt  verloren  hebben,  dar  id  en  vore 
satet  was  van  uns,  unde  vor  der  scholet  ze  dar  nene  nod  umme  liden" 
{Kohler,  114). 

3  The  just-quoted  passage  from  the  "Prague  Rechtsbuch"  ends:  "jr 
gelubde  stee  zwissen  in  den  andere  "  ;  so  also  the  "  Sachsenspiegel"  passage, 
"ire  gelovede  stunde  den  anders."  A  clause  in  a  document  of  1344  reads  : 
"Wore  ouch  daz  se  [creditor]  das  .  .  .  hus  verloren  in  unseme  .  .  . 
dinste,so  solde  wir  [debtor]  ener  phenningewedergeben"  {Stobbe,  "Vertr." 
269) .  The  passages  are  collected  in  the  following  places  :  Weisl,  61 ;  Meibom, 
290;  Stobbe,  "Vertr."  269;  Heusler,  II,  204;  Kohler,  115,  315;  and  for 
Scandinavia,  in  Amira,  I,  213;  II,  §  22. 

*  Meibom,  290;  Stobbe,  "Priv."  625,  "Vetr."  256.  In  this  stage  by 
express  agreement  the  risk  is  often  thrown  back  on  the  pledgee ;  thus : 
"and  if  any  harm  comes  to  the  castle  [pledged,]  of  whatever  sort  it  be,  that 
shall  they  [pledgee]  not  demand  of  us  [pledgor]  or  our  successors,  .  .  . 
nor  have  any  claim  or  action  therefore  against  us  in  any  way"  (document 
of   1435,    Kohler,   332). 


Chap.  XXV,  §  2.]  PLEDGE  465 

1.  c.  No  claim  for  a  deficit.  If  at  the  time  for  redemption  the 
res  is  not  redeemed,  and  proves  deficient  in  value,  by  deterioration 
or  otherwise,  the  pledgee  has  no  redress ;  the  res  is  his  forfeit,  and 
he  cannot  look  beyond  it  for  payment.^  The  significance  of  this 
rule  for  the  forfeit  idea  seems  clear. 


c".  Later  still  we  find  the  next  step  taken,  and  the  law  expressly 
authorizes  pledgees  to  collect  the  deficit  from  their  pledgors.- 

2.  a.  No  return  of  surplus  by  the  pledgee.  If  the  res  is  really  a 
forfeit,  standing  for  and  in  place  of  the  claim,  the  pledgee  gets  the 
benefit  as  well  as  the  detriment,  and  if,  when  the  pledgor  fails  to 
redeem,  the  res  is  worth  more  than  he  would  have  needed  to  pay 
for  redeeming,  the  pledgee  cannot  be  looked  to  for  the  surplus ; 
and  this  is  equally  true  whether  the  res  is  merely  kept  by  the 
pledgee  or  is  sold  and  turned  into  money.^  a'.  The  transition 
comes  first  through  a  contract  clause  requiring  restoration  of  the 
surplus ;  ^  and,  a" ,  then  this  settles  into  the  fixed  custom.^  It 
seems  (where  careful  chronological  tracing  is  possible)  to  have 
come  first  for  personal  property.^  Moreover,  the  notion  (2  a) 
that  the  pledgee  need  not  restore  the  surplus  seems   (often  or 

^  Liibeck  Stadtrecht :  "Brickt  erne  ock,  dat  is  des  schade  deme  dat  erve 
vorpandet  is  [But  if  it  falls  short  for  him,  that  is  the  loss  of  him  to  whom  the 
land  is  pledged]"  {Stobbe,  "Vertr."  261).  The  passages  are  collected  in 
the  following  places :  Meibom,  280 ;  WeisL  61 ;  Schulte,  500 ;  Stobbe, 
"Priv."  271,  623;  "Vertr."  260;  Neumann,  202;  and  for  Scandinavia, 
Amira,  I,  213;    II,  §  22. 

^  See  the  same  citations.  The  development  is  neatly  seen  in  the 
successive  revisions  (quoted  Meibom,  424)  of  the  Hamburg  Stadtrecht. 
The  text  of  1270  read :  "Umbreke  eme  ok  wat,  de  schade  is  syn"  ;  while 
the  re-\ision  of  1292  left  it,  "Untbreke  eme  och  wat,  dhat  sea  eme  dhe 
voldcn  des  dat  goet  oder  dat  erve  was." 

3  Tills  we  notice  most  clearly  in  the  form  of  the  judgment  which  the 
creditor  (as  explained  later)  obtained.  There  is  no  talk  of  returning  the 
surplus  value  ;  it  is  simply  ordered  that  "he  take  the  pledge  to  liis  own  use 
and  be  from  the  other  man  quit  and  free"  ;  it  is  his  forfeit,  and  its  value 
is  immaterial.  The  authorities  are  found  in  Meibom,  230;  Heusler,  II, 
204;  Schulte,  500:  Stobbe, ''PrW:'  270,  627 ;  "Vertr."  260;  Kohler,  137 ; 
and  for  Scandina\ia,  Amira,  I,  203,  213;    II,  §  22. 

*  Example  of  a  document  clause  (Hesse,  1248)  :  "eo  pacto,  ut  .  .  .  si 
quid  superest,  aut  restituat,"  etc.  {Meibom,  295) ;  for  other  passages,  see 
the  citations  of  the  preceding  note. 

^  Liibeck  Stadtrecht:  "Wat  dat  erve  [land]  mer  gelt,  wan  dit  it  ver- 
volget  [forfeited]  is,  dat  schal  he  ime  wedder  geven"  (Stobbe,  "Vertr." 
261) ;  Ditmars  Landrecht,  1541  a.d.  :  "Wunneth  he  averst  mit  darumme, 
also  he  gelaveth  heft ;  dat  overighe  gheldt  schall  he  dem  rechten  sackwolt 
wedergeven"  {Neumann,  202).  In  the  Stadtrecht  of  Freiberg  we  see 
another  shade  of  transition:  "Was  die  pfant  bezzer  suit,  wi  si  sten,  daz 
mag  he  l>ehalden ;  he  mac  iz  ouch  widergeben  ob  er  wiV  {Weisl).  For 
authorities,  see  those  of  the  preceding  note,  and  Neumann,  204;  Weisl, 
25,  39. 

^  Amira,  I,  203,  213. 


4C6  THINGS  [Part  III. 

usually)  to  have  suffered  the  change  earlier  than  the  correlative 
notion  (1  c)  that  the  pledgor  need  not  pay  the  deficit ;  ^  perhaps 
the  explanation  of  this  is,  first,  that  the  pledgee  usually  took  care 
to  obtain  a  res  much  in  excess  of  his  claim,  and  hence  the  case  of 
a  surplus  was  forced  oftener  than  the  reverse  case  upon  the  com- 
munity's thoughts;  and,  secondly,  the  fairness  of  the  pledgee's 
returning  the  surplus  could  be  worked  out  on  the  theory  merely 
of  the  pledgor's  right  to  redeem  (i.e.  if  he  had  paid  cash  to  re- 
deem, he  would  have  got  back  this  surplus  value ;  hence,  why  not 
assume  a  redemption  jjer  rem  ipsam,  and  give  back  the  surplus, 
leaving  the  pledgee  no  worse?),  while  the  pledgor's  duty  to  make 
up  a  deficit  could  not  be  appreciated  until  the  independent  sur- 
vival of  an  obligation,  alongside  of  the  pledge,  had  been  fully 
recognized  in  thought. 

These  four  features,  then,  just  described,  seem  to  mark  as  clearly 
as  anything  can  the  theory  of  the  transaction  of  wd,  icette,  satzung, 
as  that  of  a  redeemable  forfeit  or  provisional  pa^'ment.  In  all 
four  there  is  a  gradual  change  to  the  notion  of  modern  times 
which  looks  on  the  debt  as  continuing  in  full  force,  and  the  res 
as  handed  over  purely  as  an  auxiliary  resource  for  the  creditor. ^ 
We  are  not  to  seek  in  the  law  of  pledge  itself  for  the  reasons  of 
the  change.  The  change  came  about  as  soon  as  the  community 
recognized  credit  widely  and  developed  varieties  of  obligation  and 
forms  of  action  for  them;  but  this  was  an  independent  process. 
As  soon  as  there  were  many  ways  of  creating  a  principal  debt,  and 
of  enforcing  it  without  a  wette,  then  it  could  be  seen  that  the  icette 
need  only  be  collateral  and  not  substitutive.     But  this  would  take 

^  Amira,  I,  205,  213;    II,  §  22;    Stobbc,  "Vertr."  260;    Mezbom,  331. 

2  It  should  be  noted  here,  as  to  the  feature  1  a  above,  that  the  views  of" 
Heusler  and  von  Amira  differ.  The  view  of  the  latter  (I,  206)  is  that  after 
receiving  the  ved  the  creditor  has  no  claim  {/order ungsrecht)  of  any  kind 
left  against  the  debtor ;  and  this  is  also  the  doctrine  of  von  Meibom  (274). 
The  former  thus  answers  it,  and  states  his  own  view  (II,  133):  "It  is 
here  overlooked  that  the  pfand  is  only  a  potential  [eventuelles]  equivalent 
for  the  debtor's  performance,  i.e.  is  given  on  the  condition  that  pay- 
ment do  not  ensue.  But  this  assumes  in  itself  the  survival  of  the  credi- 
tor's claim.  ...  It  does  not  alter  the  matter  that  he  cannot  bring  an 
action  for  payment ;  the  reason  that  he  cannot  is,  not  that  he  no  longer 
has  a  claim,  but  that  he  has  already  in  hand  his  potential  means  of  satis- 
faction, and  thus  can  of  course  no  longer  demand  that  which  already  he 
has  provisionally  received."  Kohler  (99,  100)  takes  the  same  \'iew.  The 
solution  of  this  difference  seems  to  be  that  each  lays  stress  on  a  different 
stage  of  development.  In  the  primitive  notion  of  wette,  there  is  no  more 
of  a  surviving  debt  or  obligation  than  there  is  to-day  in  our  bet  with 
stakes ;  but  in  the  course  of  development  the  independent  sur^^val  of  the 
debt  becomes  more  and  more  emphasized ;  and  one  of  these  stages  of 
transition  (and  an  early  one)  might  undoubtedly  be  expressed  in  the 
language  of  Heu.sler,  though  the  view  of  von  Amira  more  accurately 
represents  the  primitive  stage. 


Chap.  XXV,  §  2.]  PLEDGE  467 

time  to  see,  and  meanwhile  the  old  traditional  rules  of  icette  would 
persist  by  mere  inertia.  Thus  it  is  that  we  find  some  of  them 
even  in  the  late  ^Middle  Ages  long  after  a  fully  developed  system 
of  debt  had  arisen ;  and  even  in  the  last  century  it  was  necessary 
in  some  of  the  codes  in  Germany  to  declare  that  the  loss  of  the 
res  did  not  deprive  the  creditor  of  his  claim. ^ 

B.  a.  Along  with  the  features  of  the  development  just  de- 
scribed, there  are  also  constantly  mingled  certain  other  phenom- 
ena that  have  to  be  carefully  separated  and  accounted  for.  They 
are  the  product  of  the  limited  nature  of  the  pledgee's  property 
right  in  the  res  after  default,  and  their  transition  stages  are  the 
result  of  his  effort  to  make  that  right  absolute.  The  key  to  their 
explanation  is  the  part  played  by  the  aufiassung  (resignatio,  abdi- 

1  The  primitive  doctrine  above  explained  (1  b),  that  the  creditor  could 
not  recover,  even  though  the  res  had  accidentally  perished,  would  prob- 
ably never  have  been  doubted  by  scholars  as  an  historical  fact  if  it  had 
not  been  for  the  concurrent  primitive  doctrine  that  the  pledgee  was,  as 
bailee,  absolutely  responsible  even  for  accidental  loss.  These  two  doc- 
trines were  sometimes,  in  the  legal  records,  merged  into  a  rule  of  thumb 
which  has  been  misinterpreted  by  some  scholars.  It  can  best  be  explained 
by  taking  the  troublesome  "  Sachsenspiegel "  passages.  This  first  says 
(III,  5,  §  4),  that  the  pledgee-bailee  is  absolutely  Uable :  "Svat  man  aver 
deme  manne  liet  [lets]  oder  sat  [pledges]  dat  sal  he  [the  bailee]  unverderft 
wederbringen,  oder  gelden  na  sime  werde."  Then  it  makes  an  exception 
(§  5)  for  animals  pledged  :  "Stirft  aver  en  perd  oder  ve,  binnen  sattunge, 
ane  jenes  scult  [without  the  pledgee's  fault],  bewiset  he  dat  und  darn  he 
dar  sin  recht  to  dun,  he  ne  gilt  es  nicht."  So  much  as  to  his  liability  as 
bailee  to  the  pledgor  offering  to  redeem.  But  suppose  the  pledgor  does 
not  redeem,  and  the  pledgee  claims  the  debt  (which  he  would  try  to  do  if 
the  res  were  lost)  ;  this  the  law  next  calls  to  mind :  "He  hevet  aver  ver- 
lorn  sine  gelt,  dar  it  ime  vorstunt."  Thus,  there  is  an  alleviation  made 
for  him  from  his  generic  liabihty  as  bailee  to  a  redeeming  pledgor ;  but 
the  forfeit  idea  —  i.e.  as  regards  his  claim  against  the  pledgor  —  is  strictly 
maintained.  The  oath  of  innocence  which  he  takes  has  to  do  only  with 
his  getting  the  benefit  of  the  former,  and  does  not  affect  the  latter  at  all. 
In  the  later  Magdeburg  law  the  situation  is  thus  described :  "der  schade 
ir  beide  schade  sein"  ;  i.e.  the  res  is  at  the  risk  of  the  pledgor  so  far  as  he 
is  bailor,  and  is  at  the  risk  of  the  pledgee  so  far  as  he  has  taken  it,  in  lieu 
of  his  claim  as  a  pledge.  The  distinction  in  Sweden  {Amira,  I,  213)  and 
elsewhere  by  which  "both  bear  the  loss"  {i.e.  the  pledgor  can  hold  the 
pledgee  by  an  offer  to  redeem)  if  the  res  has  been  burned  with  the  pledgee's 
own  goods,  though  he  must  replace  it  if  it  is  stolen,  involves  a  modifica- 
tion of  the  pledgee's  bailee-liabihty,  and  does  not  affect  his  loss  of  his 
claim  against  the  pledgor,  which  it  assumes  as  unquestioned. 

It  is  thus  useless  to  lay  down  simply  the  proposition  (as  certain  earlier 
scholars  did)  that  in  pledges  the  "risk"  primitively  was,  or  was  not,  the 
pledgee's ;  only  by  taking  the  above  distinction  can  the  situation  be 
accurately  described.  The  two  situations  may  arise  separately  ;  for  it  is 
only  when  the  perished  res  was  worth  more  than  the  del>t  that  the  pledgor 
will  ever  offer  to  redeem  and  thus  raise  the  question  of  the  pledgee's  lia- 
bility as  bailee ;  while  if  the  res  was  worth  less,  the  pledgor  will  not  try  to 
redeem  and  the  pledgee  will  try  to  make  the  pledgor  pay,  and  will  thus 
raise  the  single  question  of  the  nature  of  the  pledge-transaction. 

Stohhe  ("Vertr."  260)  and  Mvibom  (367)  have  fully  explained,  in  sub- 
stantial harmony,  the  correct  significance  of  the  passages ;  Heuslcr  (II, 
203)  expresses  the  same  conclusion  briefly. 


468  THINGS  [Part  III. 

catio,  "se  exitum  dicere")  of  the  Germanic  law.  It  is  enough  to 
call  to  mind  that  the  Germanic  notion  of  a  complete  transfer  of  a 
property-right  invohed  three  distinct  elements,  —  the  sale  or  tra- 
ditio,  the  gewere  or  invesiitura,  and  the  verzicht,  iiplaten,  iverpitio, 
dewerpitio,  aiiflassung,  or  resignatio.  The  first  two  dealt  with  the 
transfer  of  possession  or  control  over  the  res,  and  were  later  sym- 
bolically merged  in  a  transaction  which  was  in  effect  single,  and  is 
sufficiently  indicated  by  the  one  word  traditio.  The  third,  how- 
ever, remained  essentially  separate ;  it  signified  the  final  and  com- 
plete abandonment  of  all  right  or  interest  in  the  res.  One  would, 
for  example,  give  traditio  equally  in  a  sale,  a  life-estate,  a  pledge ; 
but  in  the  first  there  would  also  be  aufiassung,  in  the  last  two 
there  would  not.^  To  the  Anglo-American  lawyer  the  idea  pre- 
sents no  difficulty,  for  it  is  already  familiar  to  him  throughout  the 
history  of  his  own  law ;  it  is  in  essence  and  in  historical  con- 
tinuity the  remittere  and  quietmn  clamare  of  the  1200's  and  the 
"release"  and  "quitclaim"  of  later  times. ^   .   .   . 

Now,  when  the  primitive  Germanic  pledgor  defaulted,  the 
pledgee  was  not  hampered  by  any  question  of  a  duty  to  appraise 
or  sell  the  res  and  hand  back  the  surplus  value ;  on  the  contrary, 
the  res,  so  far  as  it  was  now  his,  came  to  him  as  a  whole  and  un- 
diminished. But  the  res  was  not  his  absolutely ;  that  was  his 
difficulty.  It  was  not  that  he  had  a  duty  to  sell ;  such  a  notion 
was  then  unthought  of ;  it  was  that  he  had  not  the  right  to  sell. 
He  had  only  a  defective  title  to  give,  and  even  if  he  disposed  of 
that,  the  ultimate  possessor  might  (in  the  case  of  personalty)  hold 
the  res  successfully  against  the  pledgor  by  the  doctrine  of  hand 
muss  hand  icahren,^  and  then  the  pledgor  might  come  against  the 
pledgee  for  wrongfully  disposing  of  the  goods.  The  fact  that  the 
pledgor  was  in  default  by  not  redeeming  at  the  due  time  did  not 
help  the  matter ;  the  trouble  was  that  a  defect  existed  in  the  very 
propertj-right  of  the  pledgee,  i.e.  he  had  never  had  an  aufiassung 
from  the  pledgor.^    This  defect  prevents  him  from  doing  as  he 

'  ^'Aufiassung''  was  sometimes  used  by  older  German  scholars  in  a 
sense  inclusive  of  traditio.  The  true  doctrines  of  Germanic  law,  in  par- 
ticular the  significance  of  aufiassung ,  are  here  assumed  to  be  those  estab- 
lished by  Heusler  in  his  "Gewere,"  and  expounded  in  their  latest  form 
in  his  "Institutionen,"  II,   §§  92-94. 

2  Pollock  and  Maitland,  "Hist.  Eng.  Law,"  II,  90. 

3  Heusler,   II,    10,   212. 

*  Ibid.,  II,  141:  "If  any  doubt  could  exist  on  this  point,  it  would 
be  removed  by  the  fact  that  the  documents  in  a  satzring  never  speak  of 
resignare;  that  the  laws  always  place  setzen  and  aufiasseji  in  antithesis, 
using  the  former  for  pledge-giving,  the  latter  for  ownership-transfers ; 
that   the  land-registers  were  classed  into  lihri  rcsignationum  and  lihri 


Chap.  XXV,  §  2.]  PLEDGE  469 

pleases  with  the  res ;   usually,  he  pleases  to  sell ;    hence  he  must 
get  a  good  right  to  sell. 

Furthermore,  the  process  of  curing  this  defect  of  title  after  de- 
fault must  be  distinguished  from  the  process  of  reducing  to  a  term 
the  unlimited  period  for  redemption  which  the  pledgor  had  if  no 
period  had  been  expressed  for  redemption.  The  icette  without  any 
•  fLxed  period  was  (primitively  at  least)  as  common,  if  not  commoner 
than  the  other, ^  and  in  such  case  the  right  of  redemption  might  go 
on  through  generations.-  This,  too,  the  tribe  of  pledgees  were 
interested  in  changing.  But  notice  that  two  steps  would  here  be 
necessary :  first,  a  period  must  be  supplied  for  redeeming,  and 
then  the  situation  is  as  if  there  had  been  a  limit  originally ;  but, 
next,  after  a  default  at  maturity  of  the  period,  the  defect  of  title 
also  remained,  and  this,  too,  had  to  be  remedied,  as  in  the  general 
case  above  described. 

a'.  This  being  so,  it  is  easy  to  see  that  the  sale  of  the  res,  about 
which  so  much  is  said  in  the  earlier  sources,  has  nothing  whatever 
in  common  with  our  modern  compulsory  sale.  It  is  simply  an 
incident,  and  the  commonest,  in  the  pledgee's  efforts  to  cure  the 
defect  in  his  title  by  cutting  off  the  pledgor's  outstanding  right 
and  thus  curing  the  lack  of  auflassung.  Let  us  examine  the 
unmistakable  marks  of  this. 

(1)  He  is  always  spoken  of  as  asking  for  or  receiving  a  "liber- 
tateni  vendendi"  or  " distraJiendi'' ;  i.e.  he  wants  to  sell,  and  some 
obstacle  to  a  sale  has  been  removed.^ 

(2)  In  the  stage  reached  by  some  of  the  laws,  the  permission  to 
realize  is  confined  to  a  re-pledge  by  the  pledgee  for  the  amount  of 
his  claim,  and  a  sale  by  him  is  expressly  disallowed.^  Another 
stage  is  represented  by  laws  permitting  the  sale  only  where  a  re- 
pledge  is  not  practicable.^  Still  others  give  an  option  either  to 
re-pledge  or  to  sell.^ 

impignorationum ;    and  that  after  a  sale    the    regular    entrj'  is    'coram 
consulibus  resignavit,'  which  is  wholly  lacking  for  pledges." 

1  Neumann,  192. 

2  Meibom,  380  ;  Ajnira,  II,  §  22  ;  hence  the  proverb,  "  versatz  verjahret 
nicht." 

3  "Potest  venumdare  de  licentia"  is  another  phrase.  See  instances 
in  Meibom,  3.31 ;    Kohler,  7  ff. ;    Weisl,  25,  .39,  63 ;    Arnira,  I,  213. 

*E.g.:  "[When  the  pledgee  wants  to  realize  on  default,]  daz  [the  res] 
sol  er  dem  andern  ansagen  [notify],  und  wann  der  daz  nit  zu  lossen  hat,  so 
sol  er  daz  nit  hoeher  versetzen  als  um  sein  schult,  aber  verkoufen  soil  'ers 
■nil"  (Kohler,  11). 

^E.g.:  "Wei  her  [pledgor]  is  denne  nicht  loszen,  so  vorseczte  her 
[pledgee]  is  vor  sin  gelt,  ob  her  mac ;  kan  her  is  nicht  vorsecze,  so  mag  her 
is  vorkouffe"  {Kohler,  6). 

8  Kohler,  7,  14.     The  reason  for  the  pledgee's  readiness  to  re-pledge 


470  THINGS  [Part  III. 

(3)  The  proceeding  which  he  took  was  the  generic  one  for  cut- 
ting off  outstanding  claims.  The  pledgee  or  other  person  applies 
to  the  judge  to  summon  all  who  may  have  any  claim  to  the  res  to 
come  and  make  it  known ;  then  the  judge  appoints  a  period  for 
this,  and  at  its  end,  by  the  expedient  of  mittere  in  hannum,  declares 
the  petitioner's  title  absolute.^   .   .   . 

(4)  That  the  cut-off  proceedings  had  in  essence  nothing  to  do 
with  sale,  and  in  particular  that  the  sale  had  nothing  to  do  with 
any  duty  to  restore  the  surplus  to  the  pledgor  (our  modern  idea, 
which  is  apt  to  be  associated  with  this  older  process),  is  further 
clearly  seen  from  the  facts  that  (a)  the  pledgee  was  allowed  to 
employ  the  cut-off  process,  and  to  get  permission  to  sell  or  to  keep, 
long  before  he  was  compelled  to  restore  the  surplus,^  and  (6), 
conversely,  the  duty  of  restoring  the  surplus,  when  that  stage  is 
reached,  is  found  even  where  the  pledgee  keeps  the  res,  and  quite 
independent  of  sale  by  him.^ 

a".  This  proceeding,  then,  by  means  of  aufbietung  and  mittere 
in  bannum  supplied  the  defect  of  title  which  arose  from  the  lack 
of  the  miflassujig,   resignatio,   or   "release"   element.     But  why 

seems  to  have  been,  as  Kohler  suggests  (19),  that  as  the  risk  of  loss  (both 
as  bailee  and  as  creditor)  was  upon  him,  he  would  naturally  be  anxious 
to  get  rid  of  the  risk  in  any  way. 

1  Heusler  (II,  85)  describes  the  process;  examples  of  terms  of  delay, 
etc.,  are  given  in  Kohler,  10  ff.  This  ufhiten,  aufbietung,  or  offering  to  the 
debtor  for  redemption,  is  not  to  be  confused  with  the  same  process  when 
made  to  cut  off  the  claims  of  the  heirs  (or  other  persons  ha\dng  the 
retraktrecht,  retrail  lignager,  or  right  of  preferment  in  buying).  In  the 
periods  and  places  where  this  survived,  the  cutting-off  process  might  also 
have  to  be  employed  as  against  such  persons ;  yet  by  some  customs  the 
debtor  was  bound  to  have  offered  the  res  in  pledge  first  of  all  to  those  per- 
sons, and  thus  there  was  no  need  for  cutting  off  the  right  which  they  had 
previouslv  renounced.  The  different  varieties  of  situations  are  illus- 
trated in" A7nira,  I,  221;    Kohler,  116;    Weisl,  42. 

2  E.g.  in  Liibeek,  as  late  as  1325,  he  might  sell  without  accounting  for 
the  surplus:  Meibom,  332,  see  also  Amira,  I,  203.  A  custom  of  Noyon, 
in  1181,  shows  clearly  the  process:  "Si  quis  terram  vel  domum  in  vadi- 
monio  posuerit,  vel  aliquid  aliud,  et  determinato  tempore  non  reddiderit 
[paid],  ille  qui  vadimonium  habet,  si  voluerit  illud  assignare  sibi  et  ad  se 
trahere,  judices  et  scabinos  illue  adducat,  et  si  post  infra  quindecim  dies 
redemptum  non  fuerit,  perpetuo  sibi  jure  possident"  {Kohler,  138). 

3  E.g.  in  Freiberg,  it  was  provided  by  law  "doch  das  dieses  pfand  ges- 
chatzt  sey  durch  das  gerichte,  und  die  besserung  an  dem  das  guth  gewest 
[i.e.  pledgor]  geweiset  werde"  {Meibom,  338).  So  for  an  express  clause 
in  a  document  of  1077  in  Salerno  :  "  Et  si  ipsi  tari  [golden  money]  minime 
nobis  [pledgee]  retdere  potuerit  de  propria  sua  causa,  et  illud  nobis  dandum 
venerit,  atjungamus  [hand  over]  ei  pretium  a  super  [over  and  above] 
ipsi  tari,  sicut  ipsa  rebus  abpretiata  fuerit  per  doctos  omines  et  deum 
timentes,  et  firma  nobis  carta  emtionis  secundum  legem  facta  et  cum  pena 
obligata"  {Kohler,  88)  ;  on  default  the  pledgee  is  to  restore  the  surplus 
"quanto  tres  justi  hominis  existimaverit,"  and  the  pledgor  is  to  execute 
a  deed  of  sale  {Id.  86).  See  also  Amira,  I,  205.  In  many  laws  the  pledgee 
is  expresslv  said  to  have  his  choice  between  keeping  the  res  and  selling  it : 
Weisl,  69;"  Stobbe,  "Priv."  623,  627;    Amira,  I,  205;    II,  §  22. 


Chap.  XXV,  §  2.]  PLEDGE  471 

could  not  this  be  supplied  by  the  pledgor  himself?  It  could  be. 
It  might  be  done  by  actual  aiifMSSung  or  resignatio  after  default ;  ^ 
but  this  was  rare,  of  course,  being  dependent  on  the  pledgor's 
good  will.  Instead  of  this  the  customary  method  came  to  be  the 
embodiment  of  an  aiiflassung  clause  in  the  original  document,  — 
this  being  done  at  a  time  when  the  debtor  would  be  more  ready 
to  concede  any  terms  demanded.   .   .   . 

a'".  Abuse  of  the  resignatio-QlsMse.  So  far  all  was  well ;  the 
thought  of  the  community  was  that  the  pledgee  should  have  his 
cut-off,  and  he  was  allowed  to  get  it  either  by  the  judicial  proceed- 
ing or  by  the  deed  clause.  If  the  primitive  rule  as  to  non-restora- 
tion of  surplus  had  continued,  and,  even  then,  if  the  judicial  process 
had  remained  the  sole  or  usual  cut-off  method,  no  new  problem 
would  have  arisen.  But  the  old  rule  had  been  left  behind,  and 
the  pledgee  was  by  this  time  bound  to  restore  on  default  the 
surplus  value  to  the  debtor  (whether  he  kept  or  sold  the  res). 
So  long  as  he  resorted  to  the  judge  for  achieving  his  cut-off,  the 
duty  of  restoration  was  managed  easily  enough  ;  the  judge  declared 
the  title  of  the  pledgee  absolute,  either  for  keeping  or  for  selling, 
on  the  terms,  in  the  former  case,  that  the  res  was  appraised  and 
the  excess  value  paid  to  the  debtor,  and,  in  the  latter  case,  that  the 
surplus  money  received  was  so  paid  over.  But  wdien  the  cut-ofif 
came  to  be  attainable  (for  landed  property)  by  a  resignatio-c\?i\xsQ 
in  advance,  the  pledgees  soon  found  that  this  was  an  excellent 
method  of  evading  the  new  rule  about  surplus  restoration  ;  for  the 
res  on  default  became  the  absolute  property  of  the  pledgee  without 
his  going  to  court,  and  he  could  keep  it  all,  which  he  could  not  do 
if  he  had  had  to  apply  to  the  court ;  hence  the  popularity  of  the 
clause. 

It  will  be  seen  that,  in  the  examples  cited  in  the  preceding 
note,  the  clauses  all  provide  that  the  res  shall  go  in  toto  to  the 
pledgee,  without  any  provision  for  surplus  restoration.  Now  until 
the  old  notion  of  forfeit  or  equivalency  had  been  thoroughly  cast 
aside,  and  until  the  rule  about  surplus  restoration  had  become  a 
solid  and  instinctive  element  in  the  legal  thinking  of  the  commu- 
nity (which  in  some  places  did  not  come  till  the  1400's),  the  com- 
munity would  not  be  prepared  to  protest  against  this  ingenious 
evasion  of  the  rule  by  the  use  of  the  resignatio-c\2i\\?,Q.     But  when 

1  Heusler  gives  an  example  (II,  139) :  "Predium  meum  abbati  pro  C 
mareis  exposui  et  statute  die  cum  memorata  pecunia  solvere  proposui ; 
cum  vero  prefixus  dies  advenisset  et  abbas  argentum  mihi  dudum  datum 
requisisset,  minime  illud  reeompensare  valens,  predium  abbati  in  per- 
petuam  possessionis  institutam  obtuli." 


472  THINGS  [Part  III. 

that  time  did  come,  the  evasion  would  have  to  be  stopped.  It  was 
not  that  there  was  anything  to  be  said  against  the  resignatio-clause 
in  itself,  i.e.  as  a  cut-off ;  for  this  very  cut-off  was  that  to  which 
the  courts  themselves  had  been  accustomed  for  several  centuries  to 
aid  pledgees.  It  was  the  abuse  of  this  particular  cut-off  process 
in  evading  the  surplus-restoration,  that  made  it  vicious.  Now  the 
enabling  circumstance  for  the  pledgee  was  that  he  got  absolute 
title  by  operation  of  the  deed,  without  going  into  court ;  and  thus 
the  obvious  thing,  by  way  of  remedy,  was  to  oblige  him  to  do  just 
what  he  had  been  used  voluntarily  to  do  under  the  old  mittere  in 
bannum  proceeding,  \iz.  come  into  court  to  get  a  complete  title; 
for  then  the  court  itself  could  see  that  he  accounted  for  the  sur- 
plus. Thus  the  dift'erence  between  his  coming  into  court  in  the 
900's  and  his  coming  into  court  in  the  1500's  was  radical ;  then, 
he  came  voluntarily  to  get  justice  and  have  a  defect  of  title  cured  ; 
now,  after  he  had  found  out  another  way  of  curing  that  defect,  and 
was  using  it  to  abuse  a  principle  of  justice  that  had  grown  up  in 
the  meantime,  he  came  into  court  comjmlsorily  to  be  made  to  do 
justice;   the  two  situations  being  wholly  distinct.^ 

This,  then,  is  the  stage  at  which  the  pledge  transaction  emerges 
into  what  we  call  modern  history.  .  .  .  The  imperial  prohibition 
of  the  lex  commissoria  in  Roman  law,  which  has  served  as  the 
theme  of  much  fruitless  discussion,  is  nothing  more  or  less  than 
the  same  feature  in  the  development  of  another  legal  system.  .  .  . 

For  the  form  in  which  the  problem  was  presented  to  modern 
law,  then,  we  were  indebted  to  two  distinct  principles,  operating 
together  to  cause  confusion  and  misinterpretation  in  the  modern 
student's  mind.  First  (A)  the  forfeit  notion  which  had  primitively 
prevailed,  and  had  then  given  way  to  the  notion  of  collateral  secu- 
rity ;  and,  next  (B),  the  necessity  of  a  resignatio  or  auflassung, 
which  left  a  defect  in  the  pledgee's  title,  and  led  him  to  strive  to 
cure  it,  and  revealed  to  him,  in  curing  it,  a  way  of  evading  the 
other  principle ;  so  that  it  became  necessary  for  the  law,  in  main- 
taining the  former  principle,  to  deal  with  that  form  of  the  latter 
through  which  the  abuse  was  perpetrated.  Only  by  keeping  clear 
the  history  and  separate  workings  of  these  two  principles  can  we 
understand  the  form  which,  by  their  collision,  they  gave  to  the 

1  So  that  such  a  provision  for  sale  or  forfeiture  as  the  following,  which 
would  fairly  represent  in  its  terms  one  of  the  earlier  mediaeval  town  laws, 
exists  on  modern  statute  books  for  wholly  different  reasons ;  Code  Civil, 
art.  2078  :  "  Le  ereancier  ne  pent,  a  defaut  de  paiement,  disposer  du  gage ; 
sauf  a  lui  a  faire  ordonner  en  justice  que  ce  gage  lui  demeurera  en  parement 
et  jusqu'a  due  concurrence  d'apres  une  estimation  faite  par  experts,  ou 
qu'il  sera  vendu  aux  encheres." 


Chap.  XX\",  §  2.]  PLEDGE  473 

transaction  and  the  problem  as  it  came  before  modern  Germanic 
courts. 

II,    The  Pledge  ivitlwut  Creditor's  Possession 

Neither  etymology  nor  usage  furnishes  us  in  our  language  with 
terms  exactly  expressing  the  antithesis  between  the  giving  and  the 
not  giving  of  possession  of  the  res  to  the  pledgee;  for  the  pur- 
poses of  discussion,  however,  it  is  necessary  to  have  a  term  that 
implies  merely  this  antithesis ;  and  accordingly  the  word  "  hypo- 
thec" will  be  here  employed  as  indicating  a  pledge  of  which  the 
custody  is  not  given  to  the  pledgee,  but  is  retained  by  the  pledgor. 

The  problem,  of  course,  is  to  ascertain  why  that  form  of  the 
transaction  was  in  a  given  case  chosen  instead  of  the  other,  —  to 
account  for  its  existence  as  a  distinct  legal  expedient.  Not  until  we 
have  learned  this  shall  we  be  able  to  interpret  and  to  harmonize  its 
peculiarities,  whatever  they  may  be,  and  to  understand  its  develop- 
ment. .  .  .  This  natural  relation  which  is  found  in  the  legal 
thought  of  the  modern  community  that  peculiarly  represents  in 
its  law  the  continuity  of  Germanic  tradition  will  to  us  suggest 
a  priori  the  plausibility  of  a  wholly  different  view  of  the  hypothec's 
history,  which  has  been  championed  by  Heusler  and  von  Amira, — 
the  view  that  it  is  historically  of  a  piece  with  the  generic  ived  (or 
satzung)  already  described ;  that  it  was  simply  a  variety  of  that 
transaction,  adapted  to  a  special  purpose;  that  it  bore  features 
and  followed  in  the  main  the  development  of  the  wed;  and  that 
it  had  no  connection  with  the  peculiar  expedient  of  judicial  execu- 
tion until  fairly  modern  times.  This  view  we  may  now  consider ; 
first  setting  out  the  evidential  marks  of  identity  between  the 
hypothec  and  the  generic  wed  or  satzung  already  explained ;  next, 
examining  the  raison  d'etre  of  the  former ;  and  then  noticing  its 
ultimate  fate. 

1.  The  hypothec,  or  "neue  satzung,"  as  identical  in  purpose  and 
features  with  the  generic  wed,  satzung,  ved. 

a.  In  the  first  place,  the  name  is  identical ;  this  alone  starts  the 
probabilities  in  favor  of  an  identity  of  institution.^     They  are  en- 

1  Satzen,  verselzen  (verb  idea),  and  ved,  wed,  weddeschaft  (the  res  idea), 
were  the  generic  terms  for  both:  Meibom,  36;  Stohbe,  "Priv."  273; 
Amira,  I,  193,  216;  II,  §§  22,  23.  U nterpf and  {^perhaps  a  translation  of 
subpignus)  and  subpignus  (the  Roman  term)  came  to  designate  the 
hypothec  form  :  Meibom,  36,  263  ;  NeumanK,  197  ;  Heusler,  II,  148.  {Sub- 
pignus in  modern  German  writers  is  often  used  to  mean  a  pledge  upon  a 
pledge,  or  afterpfand,  i.e.  by  a  pledgee  himself;  but  it  did  not  mean  this 
either  in  Roman  or  in  Germanic  law:  Sohm,  "Lehre  der  Subpignus,"  1.) 
Faustpfand,  handhabendes    pfand,  denoting   the    pledgee's    possession   of 


474  THINGS  [Part  III. 

lianced,  moreover,  when  we  find  that  the  phrases  in  the  other  line 
of  doctrines  about  private  redress  —  pledge-taking,  etc.  —  and 
about  the  later  judicial  execution  are  constantly  contrasted  with 
the  terms  indicating  a  voluntary  pledge.^ 

personalty,  were  later  phrases  based  on  the  false  etymology  {pugnus,  fist) 
of  the  Roman  pignus:  Meibom,  37.  V orkummern  or  bekuminern  (our 
English  "encumber")  came  to  be,  so  far  as  anything  was,  the  term  for 
hypothec  ;  and  the  terms  verselzen  and  vorkummern  are  in  later  times  often 
grouped  as  covering  all  kinds  (see  examples  in  Meibom,  429),  much  as 
pignus  vel  hypotheca  were  in  Roman  law,  the  former  being  the  generic 
term  and  the  latter  a  species.  Kistenpfand  in  some  regions  was  used  to 
denote  the  hypothec;  "posuit  domum  suam  pro  cistoli  pignare,"  "sette 
sin  hus  to  eyme  kistenpande"  :  Meibom,  423;  Aviira,  I,  216.  Furpfand, 
or  contingent  pfand,  was  another  name  used  in  Bavaria  :  Heusler,  11,  148 ; 
Kohler,  234. 

1  The  contrast  of  ideas  appears  in  the  two  words  nam,  and  set,  nehmen 
and  setzen  ("seize"  and  "hand  over")  :  Meibom,  24;  Amira,  I,  §§  15-21. 
Other  words  in  some  places  used  instead  of  nam  have  the  same  idea : 
badian  (force),  raf  {raub,  seize)  :  Brunner,  II,  §  110.  This  antithesis  in 
the  verb  idea  of  the  transactions  lasts  till  modern  times.  The  develop- 
ment of  one  is  a  part  of  the  history  of  procedure ;  of  the  other,  a  part  of 
the  history  of  substantive  law ;  and  all  the  associations  of  the  hypothec 
transaction  are  with  the  latter,  not  with  the  former. 

But  there  is  one  confusing  circumstance ;  pfand,  pant,  is  used  for  both 
transactions ;  and  this  must  be  accounted  for.  Now  the  sources  of  the 
later  law  of  execution  were,  roughly  speaking,  two  {Heusler,  II,  §  117; 
Brunner,  II,  §§  110-112;  Amira,  I,  §§  15-21,  28;  II,  §§  11-16).  (1)  The 
creditor  or  injured  person  could  primitively,  in  limited  cases  and  follow- 
ing certain  rules,  go  himself  and  carry  off  (nam)  movable  goods  of  the 
debtor  sufficient  to  pay ;  they  then  became  to  him  a  forfeit-payment  of 
the  ordinary  sort,  i.e.  they  were  at  his  risk  till  redeemed,  and  if  not  re- 
deemed they  were  forfeited  to  him  absolutely  without  regard  to  any  surplus 
value ;  in  Scandinavia  the  thing  thus  taken  was  designated  (from  the 
verb  idea)  as  7iam,  while  in  Germanic  tribes  the  thing  taken  was  called 
usually  pant  (a  word  of  uncertain  origin,  but  probably  having  the  same 
force).  (2)  Where  the  debtor's  outlawry  had  occurred,  the  injured 
person  might  by  a  strudes  Icgitima  or  "legal  rape,"  go  and  get  satisfaction 
from  the  outlaw's  confiscated  personalty ;  and,  much  later,  the  doctrine 
of  missio  in  bannum  regis  obtained  for  him  a  similar  satisfaction  out  of 
the  confiscated  realty,  —  the  phrases  being  missio  in  vorbajinum,  fronbote, 
fronung,  and  the  like.  Now  these  two  processes  worked  towards  each 
other,  so  that  they  came  to  share  the  common  feature  of  securing  satis- 
faction from  any  defaulting  debtor  subject  to  the  control  of  the  court. 
But  the  distinctive  feature  of  the  former  process  was  still  that  the  creditor 
got  the  res  as  a  redeemable  pledge  only ;  while  in  the  latter  he  got  a  true 
payment  on  execution.  Hence  the  former  process  had  bonds  of  relation 
with  both  the  ordinary  wed  transaction  and  with  the  execution  or  vor- 
bannung  process ;  and  for  the  one  relation  the  pant  word  came  to  serve, 
while  for  the  other  the  nam  or  nehmen  idea  was  emphasized.  Moreover, 
since  what  the  creditor  almost  always  got  by  nam  was  personalty,  person- 
alty pledges  came  naturally  to  be  called  pant  generically,  and  the  ived 
term  was  thus  largely  driven  out  of  usage  for  personalty  (though  wadium 
originally  covered  both  personalty  and  realty,  and  though  the  process 
itself  —  the  nam  —  from  which  pant  was  borrowed,  had  a  history  indepen- 
dent of  the  ived)  ;  moreover,  the  original  state  of  things  is  further  shown 
by  the  fact  that  in  Scandinavia  ved  was  not  thus  driven  out,  though  pant 
when  borrowed  from  the  German  in  later  times  covered,  as  in  Germany, 
pledges  both  7iam  and  set.  Later  still,  pfand  partly  extends  to  realty  also, 
—  in  such  compound  words  as  kistenpfand,  pfandschaft.  The  case  is 
much  like  that  of  our  "pledge";    originally  pleige,  a  personal  surety,  it 


Chap.  XXV,  §  2.]  PLEDGE  475 

b.  The  pledge  without  creditor's  possession  is  found  quite  as 
early  as  the  other  form  ;  ^  which  indicates  that  it  cannot  have  made 
its  first  appearance  through  the  development  of  the  missio  in 
hannum. 

c.  The  documents  indicate  its  nature  to  be  simply  that  of  a  post- 
poned or  contingent  iced^  This  characteristic  is  the  key  to  its 
origin,  and  will  be  explained  later.    .   .   . 


d.  The  unmistakable  marks  of  the  forfeit  idea,  which  we  have 
seen  to  belong  to  the  ordinary  iced,  are  found  also  in  this  form. 
In  the  first  place,  the  res,  if  default  occurs,  in  primitive  times,  pays 
the  pledgee  regardless  of  its  deficiency  of  value,  and  the  pledgor 
cannot  be  looked  to  for  the  deficit ;  ^  while  (as  we  saw  above)  the 
later  law  finds  this  departed  from,  and  the  debtor  made  liable  for 
the  deficit.^  In  the  next  place,  the  res  was  forfeited,  in  the  sense 
that  the  creditor  took  the  whole,  without  any  duty  to  return  the 

practically  drove  out  gage  for  personal  property  and  restricted  it  (as 
"mortgage")  to  realty;  yet  the  old  law  of  personal  suretyship  is  no 
more  to  be  looked  to  as  the  source  of  our  "pledge"  doctrines  than  is  the 
process  of  nam  for  the  Germanic  doctrines  of  wed  and  pfand.  It  should 
be  added  that  as  most  hypothecs  were  of  realty,  and  as  pfand  was  chiefly 
applied  to  personalty,  the  hypothec  is  almost  always  (except  in  kisten- 
pjand)  dealt  with  in  mediaeval  Germanic  law  in  the  terms  wed,  satz,  satzung ; 
and  thus  there  is  ample  e\Tdenee  from  etymology  that  the  hypothec  is 
quite  distinct  historically  from  the  process  of  execution,  independently  of 
whether  we  are  able  or  not  to  account  for  the  use  of  pfand.  Nevertheless, 
that  use,  though  confusing,  seems  quite  capable  of  explanation  in  the 
above  manner. 

^  Stobbe,  "Priv."  272;  Heusler,  II,  §  104;  Amira,  I,  216.  Kohler, 
24,  gives  a  capitidum  as  early  as  866,  dealing  with  it. 

^  A  Scandinavian  example  (Atnira,  II,  §  23)  :  After  selling  a  piece  of 
land  with  warranty :  "That  this  sale  may  be  more  firm  and  trustworthy, 
J.  [the  seller]  has  put  us  [the  buyer]  his  farm  of  five  acres,  in  M.,  in  full 
liability,  so  that  we  are  to  take  it  if  the  above  piece  of  land  should  be  sued 
away  from  us."  Germanic  examples :  After  selling  a  mill  and  engaging 
to  get  the  lord's  consent  to  the  sale:  "quod  si  negligentia  vel  culpa  pre- 
pediti  non  fecerimus,  curias  duas  in  M.  ecelesiae  loco  molendini  contuli- 
mus  perpetuo  possidenda"  (Heusler,  II,  14.5,  also  152) ;  after  stating  a 
debt:  "Predictam  autem  villam  tibi  obligo  et  in  pignore  pono,  ut  si 
minime  feeero  te  ad  deliberandum  ad  suprascriptum  terminum  eo  hordine 
et  racione  ut  supra  legitur,  tunc  tribuat  tibi  potestas  acccdere  et  intro- 
mittere  sive  ad  proprium  dominare  ipsa  vestra  pignora,  et  tamquam  le- 
gitimum  documentum  possidere,  nullo  vobis  homine  contradicente" 
(Kohler,  353);  "Nos  .  .  .  subpignoramus  curiam  nostram  .  .  .,  et  si 
in  solucione  .  .  .  negligentes  extitimus,  .  .  .  immediate,  cum  ipsis 
[creditors]  plaeuerit,  .  .  .  accipiant  subpignora  nostra"  (Meibom,  227, 
261). 

^  Stobbe,  "Priv."  276-278;  A7nira,  I,  216;  II,  §  23.  Moreover,  the 
same  general  l)ut  indescribable  e\adences  of  the  equivalency-idea  run 
tlirough  the  documents,  wMeh  give  the  reader  a  clear  impression  of  the 
identity  of  the  trcd  idea  in  both. 

''  Stobbe,  lb. ;  Amira,  lb.  (in  the  first  passage,  the  Wisby  law  represents 
the  more  advanced  or  later  stage). 


476  THINGS  "  [Part  III. 

surplus,^  —  as  in  the  ordinary  wed  or  satzung ;  but  here,  too,  the 
later  law  gets  gradually  away  from  this,  and  we  find  a  valuation 
and  return  of  the  surplus.-  x\s  before,  in  the  ordinary  loed,  the 
latter  development  —  the  pledgee's  duty  to  restore  the  surplus  — 
comes  before  the  former,  —  the  pledgor's  liability  for  the  deficit.^ 
Parallel  with  this  development  of  the  forfeit-idea  went  also,  of 
course,  the  development  of  the  pledgee's  efforts  to  cure  the  defect 
of  his  title,  as  already  described  for  the  ordinary  wed  with  pledgee's 
possession.  .  .  . 

e.  The  pledgee  obtained  a  title  to  the  res,  good  against  third  per- 
sons. This,  if  true,  militates  strongly  against  the  theory  that  the 
debtor  has  merely  promised  the  creditor  a  general  right  of  levy 
and  sale  on  default  which  he  would  otherwise  either  not  have  at  all 
or  have  only  by  legal  proceedings.  This,  if  true,  is  more  in  har- 
mony with  the  notion  that  the  specific  res  is  now  the  creditor's, 
subject  to  the  contingency  of  default.  .  .  . 

/.  The  debtor  who  gave  a  hypothec  could  not,  by  primitive  law, 
during  its  life  give  another  one  to  a  third  person.'*     This  is  a  nota- 

^  Stobbe,  lb.;    Amira,  lb.;    Meibom,  435. 

^  Stobbe,  Meibom,  Amira,  ubi  supra.  A  clause  from  a  document  in 
Meibom,  261,  262,  shows  how  the  auflassung  or  commissoria  clause  was 
used  to  dispense  with  the  duty  of  restoration  which  the  later  law  ordinarily 
placed  on  the  pledgee;  upon  default,  the  pledgees  "cum  placuerit,  im- 
mediate aceipient  subpignora  nostra,  faeientes  cum  hiis  omnibus,  secun- 
dum formam  proprietatis  tituli,  quitquit  ipsis  \'idebitiu'  expedire"; 
again,  "Si  non  redederemus  .  .  .  licentia  aveatis  tu  aut  tuos  heredes 
supradicta  terra  avire  et  dominare  in  vestra  potestate"  (Kohler,  85). 
In  Norway,  the  different  stages  appear  very  distinctly ;  the  pledgee 
takes  the  whole  res  in  forfeit,  unless  there  is  a  special  agreement  that  he 
is  to  take  the  equivalent  of  his  claim  only ;  in  the  next  stage,  he  is  to  take 
the  exact  equivalent  of  his  claim,  unless  by  special  agreement  he  maj^ 
take  the  whole.  In  Iceland  an  intermediate  stage  appears,  in  which  he 
is  to  take  double  the  amount  of  his  claim,  by  measuring  off  for  himself 
the  land  required,  according  to  a  valuation  of  the  neighbors,  —  unless 
other  creditors  would  suffer  owing  to  the  debtor's  insolvency,  in  which 
case  he  takes  onlj^  the  exact  equivalent ;  in  the  later  law,  he  takes  always 
the  exact  amount  only. 

'  Stobbe,  Amira,  ubi  supra.  This  is  neatly  to  be  seen  in  the  laws  men- 
tioned by  Stobbe ;  in  some  of  them  the  stage  of  handing  over  the  surplus 
is  not  yet  reached ;  but  in  most  of  them  a  sale  is  to  be  made  and  the 
surplus  handed  over ;  within  this  latter  group,  however,  are  still  some 
which  do  not  require  the  pledgor  to  make  up  a  deficit.  So  in  Amira's 
records,  the  Wisby  law,  representing  the  later  stages,  requires  the  pledgee 
to  restore  the  surplus,  and  the  pledgor  to  make  good  any  deficit ;  but  an 
earlier  text  of  the  Hamburg  law,  on  which  the  Wisby  law  was  founded, 
does  not  contain  a  clause  making  the  latter  requirement. 

4  Meibom,  429;  Stobbe,  "Priv."  274,  283;  Amira,  II,  §  23  (in  Iceland 
the  pledgee  might  take  possession  immediately  upon  the  pledgor's 
transferring  to  the  third  person) ;  Kohler,  23.  A  later  but  transitional 
stage  is  seen  in  the  rule  that  a  second  could  be  given  only  for  the  surplus- 
amount  over  the  first ;  but  as  soon  as  the  forfeit-idea  disappears,  and  the 
pure  notion  of  collateral  security  becomes  established,  it  is  perceived  that 


Chap.  XXV,  §  2.]  PLEDGE  477 

ble  feature  of  other  systems  of  law,  and  it  seems  to  be  explainable 
on  only  one  theory,  viz.  that  since  the  res  has  been  dedicated 
specifically  as  contingent  payment  for  a  possible  default,  and  since 
(as  we  have  just  seen)  the  creditor-pledgee  obtains  a  title  to  it  pur- 
suable  in  the  hands  of  a  third  person,  and  since  on  default  the 
pledgee  will  obtain  the  whole  res  as  the  equivalent  of  his  claim, 
regardless  of  any  surplus  value  that  may  exist,  it  is  impossible  to 
conceive  of  any  other  creditor  as  having  a  concurrent  interest  in 
that  res.  In  short,  this  well-proven  rule  is  not  only  consistent  with, 
but  is  the  inevitable  consequence  of  the  fundamental  forfeit-idea  in 
the  iced  or  satzung. 

2.  The  hypothec  then,  being  originally  in  legal  nature  nothing 
but  a  form  of  iced  or  satzung  in  which  the  pledgee  was  not  given 
possession,  what  were  the  circumstances  to  which  this  form  of 
satzung  would  be  appropriate?  Why  and  when  would  this  form 
be  used  instead  of  the  other?  The  answer  has  already  been 
pointed  out,  viz.  wherever  the  existence  of  a  claim  is  not  yet  cer- 
tain, i.e.  a  default  is  only  contingent.  The  chief  cases  of  this 
sort,  as  enumerated  by  Heusler  (147)  are:  (1)  Warranty  of  title 
in  a  sale  of  land ;  (2)  Rent  from  a  lessee  or  other  rent-grantor ; 
(3)  Liability  of  a  debtor  to  a  surety  for  possible  default ;  (4)  Lia- 
bility of  a  guardian  on  account  of  an  infant's  revocation  of  a  sale 
at  majority,  of  a  husband  for  a  wife's  claim  of  dower  in  property 
sold,  and  the  like.  In  such  cases,  as  Heusler  remarks,  "it  would 
be  unreasonable  to  make  a  satzung  which  would  transfer  the  enjoy- 
ment of  the  property  immediately  to  the  creditor,  for  that  would 
be  wholly  unnecessary  and  quite  beyond  what  the  creditor  could 
have  any  pretext  for  demanding."  The  res  was  to  be  the  iced,  if 
there  sh6uld  be  a  default ;  but  as  there  might  not  be  any  default, 
it  was  enough  assurance  for  him  to  have  the  res  legally  dedicated 
in  advance  to  cover  that  default,  while  remaining  in  the  meantime 
in  the  obligor's  hands.  This  explanation  is  a  priori  wholly  natural 
and  harmonious  with  the  forfeit  idea.^  .  .  . 

any  number  of  creditors  are  welcome  to  take  their  chances  with  the  res, 
even  though  their  united  claims  exceed  its  value ;  and  so  we  find  (Stobbe, 
283)  the  codifications  of  the  1.500's  providing  expressly  that  additional 
hypothecs  are  allowable. 

1  [In  later  chapters  of  the  original  work,  the  author  traces  a  correspond- 
ing development  in  Egyptian,  Babylonian,  Jewish,  Japanese,  Greek,  and 
Roman  law.] 


Chapter  XXVI 
SURETYSHIP  1 

1.  Suretyship  originally  meant  the  giving  of  a  hostage,  the 
debtor  being  released  by  a  new  debtor,  either  at  once  or  when  the 
need  arose.  Not  until  later  did  suretyship  change  its  character 
so  that  it  implied  an  addition  to  the  debtor's  credit  instead  of  an 
attachment  of  the  person. 

The  principle  of  giving  pledge  of  a  hostage  is  based  on  the  idea 
of  representability,  one  person  being  considered  as  fitted  as  an- 
other to  assume  the  liability  for  the  debt  and  thus  to  satisfy  the 
creditor.  This  applied  not  only  to  obligatory  relations  of  an 
economic  kind,  but  also  to  penal  obligations,  a  surety  taking  the 
place  of  the  guilty  subject.  Here,  too,  we  find  the  idea  of  equiv- 
alence, resting  on  the  view  which  at  that  time  dominated  criminal 
justice,  and  did  not  necessarily  connect  the  punishment  with  the 
perpetrator,  but  even  extended  it  to  other  persons. 

2.  To  act  as  surety  was  considered  the  special  duty  of  the 
members  of  the  family ;  this  was  an  outgrowth  of  the  earlier  idea 
of  the  collective  liability  of  the  family.  Wliile  formerly,  by  virtue 
of  the  law,  the  family  was  liable  for  the  individual,  the  later  form 
reversed  this,  so  that  the  individual  took  upon  himself  the  liability 
for  other  members  of  his  family. 

3.  Suretyship  does  not,  of  course,  aim  at  subjecting  the  surety 
to  the  debtor's  difficulties ;  rather,  it  is  understood  that  he  is  to 
be  released  by  the  debtor's  doing  what  is  necessary  to  satisfy  the 
creditor  either  economically  or  by  undergoing  the  penalty.  Not 
to  protect  the  surety  against  liability  was  a  reprehensible  breach 
of  faith,  and  whoever  was  guilty  of  it  not  only  incurred  the  blame 
of  society,  but  the  surety  was  allowed  to  proceed  against  him 
rigorously.  At  first,  this  so-called  recourse  developed  within  the 
family,  and  the  State  paid  little  attention  to  it  originally ;  because 

1  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law," 
(Albrecht's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

478 


Chap.  XXVI.]  SURETYSHIP  479 

the  family  kept  order  In  its  own  circle,  and  of  its  own  accord  re- 
venged all  negligences  and  failures  on  the  part  of  its  members  to 
perform  their  duty. 

4.  Suretyship  was  a  liability  of  the  person.  It  was  not  a 
trade  obligation  but  a  personal  intervention  for  another;  hence 
the  principle  that  suret\'ship  expires  with  the  surety ;  it  is  not 
handed  on  to  the  heirs. 

5.  But  this  leads  to  serious  evils,  for  the  debtor  is  freed  from 
the  creditor  by  virtue  of  the  suretyship,  and  then  the  creditor 
loses  the  surety  also. 

Of  necessity,  then,  the  rule  developed,  that  in  such  cases  the 
debtor  must  produce  a  new  surety,  or  must  again  offer  himself, 
and  this  brings  about  a  far-reaching  change  in  the  institution. 
As  long  as  obligations  existed  only  for  a  short  time,  this  condition 
of  affairs  either  did  not  occur  at  all,  or  had  no  effect  deep  enough 
to  influence  the  institution  to  any  considerable  extent.  Butj 
when  long-continued  obligatory  relations  arose,  it  was  necessary 
to  provide  for  the  creditor  in  the  way  mentioned ;  and  this  gave 
rise  to  the  rule,  that  by  procuring  a  surety  the  principal  debtor 
is  indeed  freed,  but  not  completely ;  he  must  again  become  answer- 
able if  the  guaranty  of  the  surety  fails.  This  conditional,  further 
liability  of  the  debtor  gradually  grew  to  be  unconditional ;  and  so 
it  came  to  be  that  both  the  debtor  and  the  surety  were  liable  to 
the  creditor  —  a  condition  that  would  have  been  impossible, 
according  to  the  views  held  in  earlier  times ;  for  then  the  principle 
was  maintained :  one  debt,  one  debtor.  Gradually  the  debtor's 
liability  became  so  conspicuous  that  some  systems  of  law  have 
forced  the  surety  entirely  into  the  background;  so  that  he  is 
answerable  only  if  the  debtor  fails  in  some  way  to  perform.  What 
is  called  the  beneficium.  e.vcussionis,  according  to  which  the  surety 
may  require  that  the  creditor  first  proceed  against  the  debtor  and 
resort  to  the  surety  only  if  this  attempt  is  unsuccessful,  is  a  very 
meager  institution  and  one  that  discourages  credit,  for  it  makes 
the  creditor's  security  unstable.  The  security  of  credit  requires 
not  only  full,  but  also  easy  satisfaction  to  the  creditor ;  in  order 
that  credit  may  be  easily  obtainable,  it  is  necessary  not  only  that 
the  creditor  be  paid,  but  also  that  he  attain  his  object  quickly 
and  without  trouble.  Hence  the  idea,  that  appeared  in  Germany 
in  the  ^Middle  Ages,  that  the  surety  may  require  the  creditor  to 
proceed  punctually  against  the  principal  debtor,  so  that  the 
latter  may  not  become  insolvent  and  thus  cast  the  burden  on  the 
surety,  is  entirely  at  variance  with  the  meaning  of  the  institution 


480 


THINGS 


[Part  III. 


and  deprives  it  of  a  great  part  of  its  value.  The  only  proper 
course,  in  such  a  case,  is  to  allow  the  surety  to  proceed  against  the 
debtor  and  to  leave  it  to  him,  whether  he  will  do  so ;  so  that  the 
debtor' may  be  compelled  to  give  the  surety  security,  or  to  release 
him  (either  by  finding  another  surety  or  in  some  other  way). 


Chapter   XXVII 

EVOLUTION  OF  THE  LAW  OF  CONTRACT 

Section  I 

THE   FIDES   COMMANDMENT  1 

The  Belief  in  Zey?  Trtcrrio?  (Dius  fidius) 

The  belief  in  two  powers  —  gods  and  the  spirits  of  ancestors  — • 
who  stand  in  a  certain  contrast  to  each  other,  is  the  basis  of  the 
ancient  Aryan  system.  Among  the  south  Aryan  tribes,  the  wor- 
ship of  the  "parentes"  of  the  first  three  grades  [father,  grand- 
father, and  great  grand-father]  differed  in  a  pecuHar  manner 
from  the  general  cult  of  more  distant  ancestors,  especially  famous 
heroes.  Out  of  this,  the  Greeks  and  the  Latins  developed  the 
precept  of  obedience  to  the  fatherland.  A  fourth  idea  has  been 
annexed  to  this  cult  —  aid  to  fellow-creatures  needing  protec- 
tion, who  if  despised  have  the  power  of  the  curse.  According 
to  the  ancient  fundamental  ideas,  sacrifices  are  made  to  these 
four  powers.  The  commandments  to  honor  them  are  religious. 
These  four  commandments  are  unmistakably  found  in  ancient 
Roman  "fas."  In  contrast  to  them  are  the  five  moral  injunc- 
tions —  [physical  and  moral  cleanliness,  not  to  defame,  not  to 
inflict  physical  injury,  not  to  steal,  and  not  to  lie.] 

Four  peoples  which  will  be  more  closely  considered  here,  have  a 
clear  connection  with  these  five  moral  precepts  —  the  Indians, 
Iranians,  Greeks,  and  Latins.  But  in  the  use  of  these  precepts, 
these  peoples  finally  drew  far  apart.  The  seeds  of  these  five 
rules  already  lay  in  the  first  religious  commandments :  one  must 

1  [By  Dr.  B.  W.  Leist,  Professor  of  Law  at  the  University  of  Jena. 
Translated  from  "  Alt-Arisches  Jus  Civile,"  Erste  Abtheilung,  Jena,  1892 
(pp.  42()-4.:)()),  by  Albert  Kncoitrek.  The  translator  is  glad  to  acknowledge 
the  use,  for  purposes  of  comparison,  of  a  preliminary  translation  of  the 
same  material,  courteously  made  at  his  request,  by  Mr.  H .  R.  J ucrgensen 
of  Chicago,  a  former  student  of  law  at  the  University  of  Munich.  The 
present  translator,  however,  is  solely  responsible  for  whatever  may  have 
missed  the  mark  in  the  rendering  now  made.] 

481 


482  THINGS  [Part  III. 

keep  oneself  pure  towards  the  gods  and  be  loyal  and  true.  These 
rules  then  shaped  themselves  in  the  form  of  general  precepts  of 
conduct  towards  other  men.  In  that  these  rules  were  unified  by 
basic  moral  ideas,  they  were  alike  in  calling  for  expiations  when 
violated.  These  expiations  were  established  for  physical  unclean- 
liness  as  well  as  for  intentional  injuries,  and  also  for  the  three  chief 
wilful  offenses  of  the  ancient  world  —  defamation,  killing,  and 
theft.  For  the  latter  violations  (as  well  as  other  offenses  altogether 
apart  from  the  question  of  purity)  revenge  on  the  part  of  those 
entitled  to  it  by  authority  or  by  reason  of  their  own  injuries, 
prevailed.  Lastly,  these  expiations  were  provided  for  untruths 
and  faithlessness. 

With  reference  to  the  three  intentional  misdeeds,  the  historical 
development  among  the  Indians,  Iranians,  Greeks,  and  Italians 
took  quite  different  courses.  In  India,  a  kingly  system  of  penal 
justice  was  added  to  the  Praya^^itta  system  which  at  first  had 
a  wide  extension ;  but  this  addition  did  not  accomplish  a  unified 
legal  establishment.  In  Persia,  a  real  system  of  public  justice 
in  the  beginning  far  superior  to  that  of  other  nations  took  the 
plan  of  the  ancient  Upazana  system.  Here  the  substitution  of 
the  principle  of  civil  legal  protection,  for  priestly  revenge  and 
individual  retribution,  was  first  clearly  expressed.  This  principle 
became  equally  effective  in  private  concerns  against  the  ancient 
method  of  self-help.  In  Greece  and  Latium,  however,  the  trans- 
formation from  the  system  of  personal  revenge  and  self-help  to 
the  stage  of  civil  legal  protection  was  much  more  tardy  and  com- 
plicated. But  especially  for  this  reason,  Rome  brought  forth  a 
product  W'hich  will  always  be  the  standard  of  all  real  progress  for 
the  w^hole  civilized  world.  In  any  event,  with  this  development, 
the  whole  question  was  once  and  for  all  removed  from  the  domain 
of  the  ancient  ideas  of  "fas"  law  into  the  sphere  of  civil  law. 

Thus,  it  came  to  pass  that  with  the  dropping  out  of  the  three 
middle  rules  of  the  five  moral  precepts,  the  first  and  fifth  drew 
closer  together.  This  occurred  most  conspicuously  among  the 
Iranians.  These  two  injunctions  constitute  the  substance  of  the 
Zoroastrian  teaching.  A  similar  combination,  however,  is  not 
discovered  either  among  the  Greeks  or  the  Romans.  But  the 
rules  themselves  are  found  in  perfect  clearness.  The  form  which 
they  took,  especially  among  the  Latins,  is  the  object  of  this  in- 
quiry. Having  already,  with  this  purpose,  [in  previous  pages  of 
the  original  work]  considered  the  precept  of  cleanliness,  it  remains 
only  to  examine  further  the  "fides"  commandment.     This  inquiry 


Chap.  XXVII,  §  1.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  4S3 

falls  into  three  divisions:  the  elements  of  the  "fides"  concept; 
the  relations  which  especially  are  based  on  "fides";  and,  lastly 
and  chiefly,  the  acts  by  which  the  obligation  of  "fides"  is  effected. 

I.    Elements  of  the  Fides  Concept 

The  Latin  idea  of  "fides"  is  entirely  the  same  as  the  Greek 
TTto-Ti?.  "Fides"  and  TrtcrTt?  are  indeed  the  same  word.  And 
yet  it  is  not  even  conceivable  that  the  "fides"  concept  of  the 
Latins  and  Romans  was  borrowed  from  the  Greeks.  It  was  for 
the  Latins  an  ancient,  deeply-rooted  ethical  precept  which,  in 
their  own  way,  they  formed  and  cultivated  with  more  energy  than 
the  Greeks  who  were  more  easily  moved  by  the  impulses  of  the 
moment.  We  have  already  seen  that  the  primitive  Aryan 
injunction  against  lying  (the  fifth  Manava  precept)  had  been  ab- 
sorbed in  a  characteristic  way  by  the  Iranians  in  the  Zara- 
thustra  teaching  with  the  commandment  of  cleanliness,  of  which 
traces  may  be  found  in  the  Indian  sutras.  The  Greeks  and 
Romans  of  a  later  age,  of  course,  were  familiar  with  the  Zarathustra 
teaching,  but  it  is  not  to  be  believed  that  they  were  acquainted 
with  this  doctrine  from  the  beginning.  The  conclusion,  therefore, 
alone  remains  that  the  ancient  Aryan  injunction  not  to  lie,  with- 
out its  special  Zarathustrian  color,  had  already'  been  a  fundamental 
ethical  possession  of  the  fore-fathers  of  the  Greeks  and  Latins  in 
p re-ethnic  ages ;  and  that  they  developed  from  it  much  the  same 
detailed  rules  found  in  the  Indian  sutras.  This  conclusion  also 
fully  agrees  with  the  fact.  In  connection  with  the  question  of 
truth,  there  stands  out  conspicuously  in  the  parallel  series  of 
Semitic  commandments,  fashioned  in  a  similar  manner,  the  only 
proposition  of  the  kind  reduced  to  a  formula :  "  thou  shalt  not 
bear  false  witness  against  thy  neighbor." 

One  of  the  most  important  institutions  of  Themis  and  "fas" 
law  was  that  which  required  in  matters  of  dispute,  before  resort 
could  be  had  to  self-execution,  that  a  judicial  judgment  must  be 
invoked,  which  had  to  be  supported  by  witnesses.  The  precept 
that,  here,  the  witness  must  speak  the  truth,  accordingly  vindicates 
among  the  Greeks  and  Romans  a  primitive  situation  ;  even  though 
the  statutory  provision  in  Rome  of  punishment  first  dates  from 
the  Twelve  Tables.  But  not  only  in  procedure,  but  generally  in 
public  and  in  private  matters,  it  was  always  a  commonly  recog- 
nized ethical  postulate  of  the  Latins,  that  one  must  keep  "fides." 
It  was  precisely  in  accord  with  the  Latin  character  to  require  a 


484  THINGS  [Part  III. 

particularly  strict  observance  of  this  commandment.  A  certain 
mutuality  was  involved  in  the  idea,  as  shown  in  the  saying :  "  da 
et  accipe  fidem "  .  .  .;  "accipe  daque  fidem."  On  one  side,  it  is 
presupposed  thatwhatis  declared  conforms  to  the  truth.  Whoever 
may  not  be  trusted  to  speak  the  truth  is  not  fitted  to  be  a  witness ; 
he  is  "intestabilis"  ;  .  .  .  "intestatusest,  cuius  verbis  fides  non  ha- 
betur."  On  the  other  side,  confidence  is  to  be  reposed  in  him  who 
is  trustworthy ;  one  is  not  only  to  give  "fides,"  but  also  to  accept 
it;  .  .  .  "'credere'  est  fidem  habere  dictis  et  factis."  Thus, 
"fides"  appears  to  be  an  objective  totality  of  principles  of  faith- 
fulness governing  mankind  in  a  mutually  obligatory  "fidelitas." 
.  .  .  The  principles  of  faithfulness  are  called  to  the  attention  of 
one's  adversary  where  it  is  perceived  that  they  may  be  violated ; 
and  their  observance  is  especially  expected  in  those  of  mature 
years.  .  .  . 

If  we  regard  "fides"  as  an  objective  standard,  yet  clearly  this 
does  not  mean  that  it  originates  in  the  State,  or  in  the  force  of  legis- 
lation or  customary  law.  It  had  to  do  rather  with  one  of  the 
ancient  Aryan  Themis  or  "fas"  law  commandments.  Therefore 
the  basis  of  its  coercive  force  is  the  belief  in  the  gods.  The  gods 
know  whether  truth  is  in  the  hearts  of  men ;  they  protect  and 
reward  the  faithful,  and  punish  the  breach  of  "fides."  The  pro- 
tection of  "fides,"  accordingly  is  committed  to  the  will  of  the  gods. 
Thus  it  was,  both  among  the  Greeks  and  the  Romans.  The 
supreme  protector  is  Zew  iricmo'i,  the  "Dius  fidius." 

In  connection  with  the  extent  of  the  "dharma-Themis-fas" 
legal  commandment  under  discussion,  we  may  state  its  further 
historical  development  among  the  various  Aryan  peoples.  The 
fifth  Manava  command  deals  only  with  veracity,  and  for  that 
reason  the  detail  of  the  sutras  is  limited  essentially  to  the  view- 
point :  "  speak  the  truth,  not  untruth"  ;  even  though  it  is  accom- 
panied by  the  maxim  :  "deal  justly,  not  unjustly."  In  the  Iran- 
ian Zarathustra  teaching  and  the  Persian  magi  doctrine,  the  truth 
conception,  on  the  contrary,  has  an  extraordinary  extension.  The 
Greek  "pistis"  and  the  Roman  "fides"  idea  has  much  narrower 
boundaries,  but  still  reaches  beyond  the  Indian  formula  of  truth- 
fulness. 

The  highest  obligation  of  "fides"  is  expressed  by  "jurare"; 
and  this  may  be  either  declarative  or  promissory;  .  .  .  "jus 
jurandum  apud  Romanes  inviolate  sancteque  habitum  servatum- 
queest";  .  .  .  "'juro' tunc  dici  debere  cum  confirmamus  aliquid 
aut  promittimus."     The  keeping  of  "fides"  therefore  signifies  not 


Chap.  XXVII,  §  1.]      EVOLUTION   OF   THE   LAW   OF   CONTRACT  485 

simply  the  maintenance  of  truth  in  what  is  asserted,  but  also  faith- 
ful conduct  in  what  is  promised.  The  "fides"  idea  has  even  ex- 
tended beyond  the  sphere  of  assertion  and  promise.  One  may  be 
placed  in  a  position  of  trust,  where,  without  either  assertion  or 
promise,  the  situation  itself  unequi^'ocally  demands  the  duty  of 
faithfulness.  A  single  concept  of  fidelity,  however,  runs  through 
all  these  forms,  which  has  a  clear  connection  with  the  narrower 
idea  of  veracity.  This  idea  of  veracity  and  fidelity  may  be  said 
to  be  a  characteristic  Aryan  element,  however  rude  it  may  appear 
in  the  beginning,  and  however  diversified  its  use  and  development 
among  individual  Aryan  peoples.  It  will  not  be  said  that  non- 
Aryan  peoples  have  not  possessed  and  do  not  possess  the  notion 
of  fidelity  as  a  parcel  of  their  growing  ethical  ideas;  but  closer 
inspection  will  show  that  this  idea  among  non-Aryans  is  in  essence 
of  different  complexion  than  that  produced  by  Aryan  blood. 
Still,  from  another  side,  the  Latin  idea  of  "fides"  requires  exami- 
nation. I  have  already  observed  that  the  ancient  Aryan  com- 
mandments of  cleanliness  and  truthfulness  were  combined  in  a 
peculiar  manner  among  the  Iranians.  One  should  be  pure  and 
true  in  thought,  in  word,  and  in  deed.  Nothing  similar  to  this  is 
found  in  Latium.  But  here  a  certain  combination  of  the  com- 
mandments of  purity  and  fidelity  with  more  general  ethical  postu- 
lates, was,  however,  effected.  The  Roman,  also,  combined  the 
requirements  of  morality  in  a  harmonious  picture  —  that  of  the 
"vir  bonus."  He  is  the  man  who  is  honored  by  his  fellow  men  for 
his  virtue  (honestus)  which  he  practices,  not  for  external  gain, 
but  for  its  own  sake.  This  moral  character,  according  to  Roman 
views,  also  had  a  double  aspect  —  negative  and  positive.  The 
negative  side  was  in  being  clean  of  fault ;  the  positive  side  was  life- 
long proof  of  integrity  or  trustworthiness,  which  was  especially 
expressed  in  the  keeping  of  "fides,"  "dictorum  conventorumque 
constantia  et  Veritas."  ...  In  particular  his  integrity  and 
"fides"  must  be  manifested  in  such  wise  that  he  holds  aloof  from 
all  treachery,  that  crime  which  can  be  traced  back  to  the  most 
ancient  times,  and  the  punislm^ient  of  which  fell  to  the  revenge 
of  the  ^aaiXeis  as  well  as  the  "  animadversio  "  of  the  king. 

According  to  the  Latin  \iewpoint,  the  consequences  of  violations 
of  the  commandments  of  purity  and  truthfulness,  may  be  consid- 
ered as  resting  on  the  same  fundamental  idea.  In  the  first  in- 
stance such  a  violation  is  against  the  gods.  They  are  injured  by 
unclean  and  unfaithful  behaviour.  In  both  cases  in  order  to 
be  made  clean  and  whole  again,  it  was  necessary  to  make  expia- 


486  THINGS  [Part  III. 

tion  in  favor  of  the  gods ;  just  as  among  the  Indians,  atonement 
for  such  offences  lay  in  the  domain  of  the  Praya99itta  system. 
Kingly  punishment  could  not  remain  excluded,  as  already  appears, 
as  to  some  of  these  violations,  in  the  siitras ;  and  in  greater  meas- 
ure among  the  Greeks  and  Romans  as  the  particular  laws  of  cities 
and  states  developed ;  whereupon  the  commandments  of  purity 
and  truthfulness  of  "fas"  law  came  to  be  recognized  in  the  most 
various  ways  in  civil  law.  .  .  . 

The  commandment  "thou  shalt  not  bear  false  witness"  which 
we  found  to  be  of  great  antiquity  may  be  regarded  as  the  central 
point  of  the  commandment  of  veracity.  In  Rome  it  was  provided 
with  civil  legal  punishment  in  the  provision  of  the  Twelve  Tables 
that  "qui  falsum  testimonium  dixisse  convictus  esset,  e  saxo 
Tarpeio  deiiceretur"  (Gell.  20,  1). 

Another  proposition  concerns  the  oath.  The  Greek  and  the 
ancient  Roman  world  regarded  it  as  an  institution  lending  security 
to  the  civil  law  as  well  as  indispensable  to  "fas"  law.  In  a  highly 
characteristic  way,  the  oath  is  described  in  Roman  legend  as  a 
pact  with  the  gods,  attributed  to  Numa  as  the  final  representative 
of  "  fas."  The  oath  of  ancient  times  took  a  great  variety  of  forms ; 
it  was  a  means  for  invoking  the  greatest  diversity  of  gods.  At 
the  time  when  the  whole  important  sphere  of  the  religious  system 
was  exclusively  set  apart  with  rigid  boundaries  from  the  State,  it 
was  necessary  that  the  manifold  forms  of  the  oath  should  have  a 
unified  operation.  Violation  of  the  oath  brought  down  the  re- 
venge of  all  the  gods.  Thus  it  was  said,  that  Numa  by  giving 
a  votum,  through  which  the  judgment  of  the  gods  is  obtained, 
was  directed,  once  and  for  all,  that  every  oath,  even  one  addressed 
to  an  individual  god,  stood  under  the  combined  protection  of  all 
the  gods;  ("Incert.  ad  Mn.,"  XII,  234  :)  "Granius  Flaccus  scribit 
Numam  Pompilium,  cum  sacra  Romanis  conderet,  voto  impetrasse, 
ut  omnes  dii  falsum  juramentum  vindicarent."  ^ 

The  general  principle,  however,  arising  from  the  combination 
of  the  two  "fas"  law  commandments,  of  freedom  from  guilt  and 
the  integrity  of  "fides,"  which  continued  to  be  a  permanent  fact 
and  also  persevered  under  the  dominion  of  civil  law,  is  the  fol- 
lowing. He  who  lives  in  accord  with  these  commandments  is  the 
"vir  bonus."  The  individual  rules  into  which  these  command- 
ments break  up  in  the  manifold  conditions  of  life  are  not  newly 

1  [For  a  full  discussion  of  the  procedural  importance  of  the  oath  in 
ancient  law,  see  Part  IV  of  this  volume,  post  (Chapter  XXXI,  Section  4) 
—  "  The  Ordeal  and  the  Oath."] 


I 


Chap.  XXVII,  §  1.]      EVOLUTION   OF   THE    L.\W   OF   CONTRACT  487 

thought  out  by  each  "vir  bonus."  They  become,  by  progressive 
development,  a  complex  of  principles  which,  in  the  long  course  of 
generations,  the  totality  of  a  unified  people  become  accustomed 
to  follow.  There  is,  therefore,  a  complex  of  "boni  mores"  which 
may  be  called  the  residue  of  ancient  ''fas."  But  the  "fas"  ele- 
ment has  never  been  eliminated  by  "  jus  "  (civile) .  It  still  survives 
as  the  foundation  of  the  latter.  Thus  the  principle  still  prevails 
that  what  is  "  contra  bonos  mores"  is  not  permitted.  Accordingly 
the  ancient  "fas"  law  standard  of  the  old  Aryan  moral  code  will 
always  have  a  place  in  the  domain  of  "jus  civile"  ;  with  conditions, 
of  course,  dependent  on  the  circumstances  of  particular  cases. 

II.    Fides  Relations 


"Fides"  duties  are  owed:  1,  to  parents;  2,  to  wards:  3,  to 
clients;  4,  to  guests;  5,  to  cognates  and  aflBnes.  There  have 
been  differences  of  opinion  as  to  the  order  of  succession  of  these 
relations.  Many  place  No.  4  before  No.  3 ;  but  I  shall  let  the 
question  pass.  My  problem  is  to  discover  how  this  series  arose 
at  all  "ex  moribus  Romanorum" ;  and  to  me  it  seems  that  these 
five  divisions  themselves  clearly  furnish  the  answer. 

We  have  already  demonstrated  what  follows  concerning  the  an- 
cient household  organization.  The  ancient  Aryan  household  estab- 
lishment ["koinonie"]  in  Latium  and  Rome  underwent  far-reach- 
ing changes.  The  "paterfamilias"  took  the  place  of  the  master 
and  mistress  of  the  household  ["  pati"  and  "patni"].  This  substi- 
tution of  authority  was  effected  with  great  energy  and  in  vigorous 
conception ;  it  resulted  in  an  entirely  new  Roman  family  system 
governed  by  particular  law  —  the  agnatic  family.  But  the 
Romans  were  not  able  to  make  of  it  more  than  a  governing  insti- 
tution ;  they  could  not  eradicate  the  ancient  Aryan  system  of 
household  authorities.  Important  residues  continued  to  exist ; 
and  certain  of  these  survivals  at  last  again  overthrew  the  agnatic 
system. 

Upon  what  elements  did  these  five  duties,  to  parents,  to  wards, 
to  clients,  to  guests,  and  to  cognates  and  affines,  rest?  It  is  be- 
yond question  that  they  all  belonged  to  the  ancient  Aryan  "jus 
gentium."  As  to  the  second  of  these  duties  also,  in  which  as  we 
have  already  seen,  there  were  definite  seeds  of  the  agnation  con- 
cept, it  can  by  no  means  be  asserted  that  it  was  simply  the  product 
of  the  Roman  agnation  principle.     These  five  duties  clearly  show 


488  THINGS  [Part  III. 

their  ancient  Aryan  origin  if  we  disregard  in  the  comparison  the 
"potestas"  of  the  house-lord  (and  the  house-mistress).  The 
"potestas"  itself  is  not  a  duty  in  favor  of  the  members  of  the 
household.  Each  one  has  a  different  position  in  the  house,  but 
all  are  subject  to  the  "ditio"  of  the  house-lord  ;  and  this  "ditio" 
is  something  quite  different  from  a  duty.  For  the  rest,  these  five 
duties  furnish  a  distinct  picture  of  the  unified  special  relations 
according  to  which  the  Aryan  house-lord  owed  a  variety  of  duties 
shortly  expressed  by  the  term  "fides-performance."  The  wife 
does  not  bear  an  "officium"  [duty]  relation  to  the  husband;  ac- 
cording to  the  ancient  view  she  is  a  co-ruler  of  the  house.  The 
"officium"  of  the  child,  however,  to  both  parents,  stands  out  con- 
spicuously. This  duty  survives  the  lives  of  the  parents,  and  after 
their  death  continues  as  a  solemn  obligation  to  render  them 
"obsequium." 

Closely  connected  (to  consider  the  next  form)  is  the  ancient  rela- 
tion of  fidelity  which  the  house-lord  owes  to  the  children  of  his 
brothers ;  if  these  brothers  had  maintained  separate  establish- 
ments, and  one  of  them  died  leaving  minor  children.  Again  this 
relation  has  a  near  likeness  to  the  protection  of  clients,  which  also 
goes  back  to  the  most  ancient  times.  A  kindred  system  such  as 
then  existed  is  hardly  to  be  thought  of  without  clients.  For  there 
were  always  persons  reduced  by  necessity  or  diminished  by  war 
who  would  desire  for  security  to  ally  themselves  as  clients  to  a 
powerful  family.  A  similar  relationship  likewise  was  created  when 
a  settlement  was  made  in  a  conquered  country,  if  the  former  in- 
habitants were  not  enslaved,  but  were  attached  as  free  persons  to 
the  various  families  of  the  ruling  tribe.  And,  precisely,  because, 
in  such  client-relationships,  the  strong  ones  dominate  the  weaker 
ones,  the  more  intensive  is  the  duty  of  "fides."  The  Latins  re- 
stored the  ancient  client  relationship  by  means  of  the  sacral 
ceremony  of  manumission. 

Next  in  order,  comes  the  "fides"  duty  to  the  guest.  The  guest 
relation  is  usually  temporary,  while  the  client  relation  presupposes 
life-long  duration.  The  concluding  "fides"  relation,  that  toward 
the  cognates  and  affines,  springing  from  the  ancient  Aryan  root  of 
societies  of  "propinqui"  for  defense  and  oflfense,  has  elsewhere 
been  discussed  in  detail.  We  may,  therefore,  be  permitted  to 
observe  that  these  "officia"  transmitted  to  the  Romans  by  the 
"majores,"  and  reaching  back' to  ancient  Aryan  times,  fare  simi- 
larly with  other  facts  which  were  not  found  to  belong  to  the  domi- 
nating agnatic  system.     All  the  more  the  necessity  was  felt  to 


Chap.  XXVII,  §  1.]      EVOLUTION    OF   THE    LAW   OF   CONTRACT  4S9 

intrust  them  to  the  memory  of  succeeding  generations  in  a  fixed 
form  of  numbers  and  in  a  studied  order. 


III.    Fides  Acts 
1.    Marriage 

It  remains  to  examine  the  Latin  acts  which  operate  to  create 
the  obhgation  of  "fides,"  and  to  show  to  what  extent  they  are 
connected  with  pre-ethnic  ages.  Since  it  is  certain  that  such 
acts  may  be  discovered  not  only  in  Latium,  but  also  in  Greece, 
and  even  farther  away,  in  the  Indian  sutras,  there  is  danger  that 
the  institutions  in  question  will  be  incompletely  understood  or 
even  misunderstood,  if  we  restrict  our  investigation  solely  to  the 
Roman  sources.  We  must  scrutinize  that  which  is  found  to  be 
one  and  the  same  institution,  with  its  local  variations  among  dif- 
ferent peoples,  in  its  entire  historical  development  in  a  common 
race  element,  as  well  as  its  special  developments.  We  must  not 
comfortably  limit  the  inquiry  to  the  written  Roman  sources  which 
contain  many  gaps,  and  which  in  other  things  give  too  narrow  a 
point  of  view.  Where  the  sources  of  other  Aryan  peoples  make 
possible  a  more  extended  horizon,  the  effort  is  not  to  be  avoided 
which  a  broader  view  requires.  We  must  be  content  to  meet 
inconvenience  in  order  that  an  enlarged  vision  may  make  compre- 
hensible what  now  cannot  otherwise  be  explained.  First  of  all,  it 
is  our  object  to  deal  with  that  which  is  capable  of  being  made 
certain. 

Four  institutions  come  under  consideration  in  connection  with 
acts  of  "fides,"  which  unmistakably  appear,  not  only  among  the 
Latins,  but  also  among  other  Aryan  peoples,  and  especially 
among  the  Greeks,  in  such  manner  that  we  are  compelled  to  regard 
them  as  historically  coherent.  These  are  marriage,  the  alliance, 
the  "sponsio,"  and  various  real  acts.  We  shall  consider  them 
in  detail ;  not  exhaustively,  but  with  the  purpose  of  attaining 
established  points  of  view. 

Marriage  is  an  alliance  ("foedus").  The  word  itself  tells  us 
that  its  fundamental  principle  involves  "fides."  The  Greeks  say 
the  same  thing  in  that  they  designate  marriage  as  the  leading 
7riaTco/xa.  .  ,  .  We  may  at  once  call  marriage  the  basic  "  foedus  " 
of  the  Aryan  legal  system.  So  far  as  the  peoples  here  re\iewed  are 
concerned,  we  do  not  find  mother-right.      And  also  in  a  survey  of 


490  THINGS  [Part  III. 

the  marriage  concept,  despite  all  that  is  crude  and  rough  in  this 
race,  we  find  a  constant  elYort  to  assign  to  woman  a  higher  position 
than  she  has  attained,  even  to  this  day,  in  marriage,  among  many 
non-Aryan  peoples. 

In  Aryan  marriage  three  stages  recognizable  even  in  later  days 
are  found,  which  have  been  derived  from  the  manner  of  construct- 
ing the  physical  seat  of  the  matrimonial  life.  The  foundation  of 
the  house  is  first  constructed ;  then  the  building  is  erected  on  it ; 
and  lastly  it  is  inhabited.  The  three  stages  of  marriage  were  not 
created  either  by  legislation  or  yet  by  customary  law.  They  are 
the  product  of  ancient  Aryan  recognition  of  the  "rita"  of  the  sepa- 
ration of  the  sexes.  The  effort  to  establish  marriage  on  a  higher 
ethical  plane  is  supported  by  the  belief  that  it  is  regulated  by  di- 
vine authority  ("dharma,"  "Themis,"  "fas");  and  that  it  has 
its  model  in  the  marriage  of  Jupiter  (Tellus)  and  Juno.  Ancient 
marriage  law  is  not  founded  on  organized  "popular  conscious- 
ness," but  on  a  precedent  "rita"  system  and  divine  principles 
based  thereon  revealed  through  the  wisdom  of  exegetes.  The 
ancient  Aryan  marriage  therefore  is  a  holy  "fides"  institution  for 
the  orderly  propagation  of  the  human  race.  Its  basis  is  the  order 
establishing  the  course  of  legitimate  descent  ("aurasa,"  'yvrjaLoC), 
"causa  liberorum  (legitimorum)  quserendorum." 

The  wife  has  a  high  position  of  honor  in  the  house,  because  she 
is  the  means  whereby  man  attains  his  highest  wish  to  beget  legiti- 
mate children,  especially  sons,  who  at  some  time  can  take  his 
place.  The  marriage  relation  presupposes  the  legitimacy  of  the 
children  arising  therefrom.  It  is  manifest  then  that  the  hus- 
band has  to  provide  for  the  support  of  the  wife  and  the  children. 
But  more  important  yet  than  physical  maintenance  is  the  spiritual 
and  moral  training.  In  ancient  times  all  instruction  and  educa- 
tion of  the  growing  generation  were  provided  in  the  heart  of  the 
household.  It  is  the  highest  aim  of  the  husband  to  make  his  sons 
like  himself,  that  they  may  grow  up  in  the  fear  of  the  protecting 
"dii  patrii"  as  strong,  able,  and  clever  members  of  the  tribal 
community.  In  this  the  mistress  of  the  house  has  a  part  as  well 
as  the  lord  ;  but  in  order  to  develop  the  ethical  powers,  it  is  neces- 
sary that  the  marriage  be  of  life-long  duration.  Even  when  the 
children  have  become  independent  the  counsel  of  the  parents  is 
necessary ;  and  when  the  parents  become  feeble,  it  is  the  purpose 
of  Aryan  marriage  that  the  father  and  mother  be  cared  for  in  the 
homes  of  the  children.  Therefore  as  the  Aryans  understood  this 
"naturale  rita"  of  marriage,  it  is  a  "fides"  relation  .  .  .  enduring 


Chap.  XXVII,  §  1.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  491 

until  death.  There  was  no  temporary  marriage  among  the 
Aryans.  And  since  marriage  was  governed  by  "rita,"  it  did  not 
rest  solely  on  the  will  of  man  and  wife  like  an  association  in  pro- 
prietary matters. 

In  each  of  the  three  stages  of  marriage,  there  is  involved  a 
"fides"  obligation.  In  the  first  there  is  a  binding  of  the  purity  of 
the  maiden  as  well  as  the  will  of  the  groom ;  but  not  by  virtue  of 
a  contractual  willing,  but  through  a  betrothal  of  the  maiden  by 
him  who  has  power  over  her,  to  him  who  is  the  suitor  [''Freier"]. 
But  this  act  of  betrothal  on  the  part  of  the  person  in  authority 
does  not  proceed  out  of  his  pure  free-will.  According  to  the 
"rita"  he  is  bound,  in  order  to  avoid  the  punishment  of  the  gods, 
to  arrange  a  marriage  as  soon  as  the  girl  is  of  marriageable  age. 
According  to  ancient  ideas  it  is  the  duty  of  the  wife  to  bear  chil- 
dren as  soon  as  she  is  able.  This  duty  is  so  firmly  implanted  in 
the  maiden  that  her  own  independent  will  does  not  come  into 
question.  .  .  . 

The  second  stage  of  marriage  is  likewise  not  explainable  on  the 
theory  of  contract.  It  is  a  unilateral  exercise  of  "potestas"  by 
the  husband  with  the  consent  of  the  person  in  authority.  The 
seizing  with  the  hands  in  the  matrimonial  ceremony  does  not  dis- 
close in  any  of  its  operations  the  "datio"  of  the  person  in  authority 
over  the  maiden,  but  still  the  "datio"  is  included.  It  is  an  act 
of  forcible  establishment  of  power  according  to  "fas"  which  is 
not  explained  away  by  an  existing  "jus"  which  is  based  on  con- 
tractual ideas.  .  .  . 

Lastly,  in  the  third  stage,  in  the  founding  of  the  household,  man 
and  wife  are  united  to  a  common  domicile,  but  again  not  by  a 
special  contract,  but  through  the  definite  fact  of  cohabitation 
which  makes  them  as  one. 


The  manner  in  which  the  Aryans  formed  the  institution  of  mar- 
riage, in  large  measure  was  the  cause  of  the  wonderful  power  and 
vitality  which  distinguished  this  race  above  others.  For  the 
reason  that  in  its  Aryan  originality  it  was  the  leading  ground  ele- 
ment of  the  legal  system,  it  is  necessary  to  reconstruct  it  first  of 
all  from  its  pure  "fas"  law  elements.  Then  only  will  we  be  able 
to  understand  its  continuance  in  the  succeeding  ages  of  civil 
law.  We  will  then  perceive  that  marriage  as  the  original  and  most 
important  of  all  other  "fides"  institutions,  is  the  source  of  cate- 
gories, ideas,  and  regulations  met  in  later  periods  of  the  hegemony 


492  THINGS  [Part  III. 

of  civil  law,  which  appear  to  lie  far  apart  from,  and  to  be  foreign 
to  the  marriage  institution. 


2.    International  Foedus 

The  second  ancient  foundation  of  the  concepts,  agreement,  legal 
transaction,  sale,  conveyance,  etc.,  is  the  "foedus"  entered  into 
between  different  clans,  especially  Aryan  societies  which  worship 
the  same  Zeus-Jupiter.  In  the  "fa^dus"  the  "fides"  expression 
is  verbally  adhered  to.  In  a  narrower  technical  sense  it  is  desig- 
nated the  "foedus,"  while  in  the  marriage  relation  it  is  called  a 
"foedus."  In  any  event,  they  occur  together  as  distinctive  basic 
Aryan  institutions  which  rest  on  a  "fides"  act,  and  accordingly  in 
their  content  are  treated  as  "fides"  relations.  While  they  have 
a  common  foundation,  yet  in  other  respects  they  are  essentially 
different.  One  rests  upon  the  principle  "naturalis  ratio,"  —  the 
other  on  a  voluntary  element. 

The  fact  is  well  established  of  all  Aryan  (as  well  as  non-Aryan) 
peoples  that  various  tribes  unite  for  the  purpose  of  protecting  each 
other  in  their  perpetual  wars.  Testimony  of  this  is  furnished  among 
the  Indians  by  the  battle  of  the  ten  kings ;  among  the  Greeks,  by 
the  Trojan  war;  and  among  the  Italians  by  the  ancient  "foedus 
Latinum."  The  characteristic  method  of  sanctioning  such  a 
"foedus"  is  the  oath  in  its  most  solemn  form.  .  .  . 

An  essential  condition  of  this  "fides"  transaction  is  the  making 
of  a  sacrifice  whereby  the  gods  are  invoked  to  participate  in  the 
entire  solemnity.  Alliances  with  non-Aryan  peoples  are  possible 
where  each  of  the  parties  calls  upon  its  own  gods.  But,  as  it  is 
easy  to  see,  an  alliance  mutually  sanctioned  by  the  same  Aryan 
gods,  especially  the  king  of  the  gods,  Jupiter,  had  a  particular 
holiness  and  obligation. 


3.   The  Sponsio 

In  the  marriage  "foedus"  based  on  "naturalis  ratio,"  and  in 
the  international  "foedus"  which  discloses  the  voluntary  element, 
we  have  before  us  beyond  doubt  the  most  ancient  "fides"  acts  of 
Themis  and  "fas"  law.  We  now  approach  a  very  important 
third  type  also  of  pre-ethnic  ages,  the  "sponsio."  An  investiga- 
tion of  this  institution  is  surrounded  by  the  greatest  difficulties, 
but  yet  it  is  a  subject  of    the  highest  historical    interest.     We 


Chap.  XXVII,  §  1.]      EVOLUTIOX   OF   THE    L.\W    OF   CONTRACT  493 

shall  approach  it  from  the  standpoint  of  what  is  securely  estab- 
lished by  the  sources. 

When  we  found  among  the  Indians,  Persians,  Germans,  Greeks, 
and  Romans,  three  stages  in  the  consummation  of  marriage  — 
the  foundation,  installation,  and  performance  —  no  doubt  was  left 
that  we  had  discovered  the  fundamental  basis  of  this  ancient 
Aryan  institution.  From  this  port  of  safety  we  may  without 
peril  go  a  little  farther.  In  the  middle  phase  of  the  three  stages 
in  the  evolution  of  marriage  where  we  found  the  ceremony  of  for- 
cible seizure,  lies  the  germ  of  the  whole  marriage  "foedus."  Indie 
as  well  as  Iranian  sources  accordingly  shortly  express  a  valid  mar- 
riage by  the  term  "hand  seizure."  I  have  therefore  considered 
it  justifiable  to  identify  the  Roman  marriage  mancipation  (which 
only  later  developed  the  general  institution  of  mancipation)  with 
the  similar  ancient  Aryan  ceremony  of  "hand  seizure"  as  being 
historically  coherent ;  in  like  manner  as,  without  question,  the 
"domum  deductio,"  of  the  third  stage,  among  the  Indians,  Per- 
sians, Greeks,  and  Romans,  may  be  regarded  as  one  and  the  same 
historicall}^  connected  usage.  We  are  furthermore  constrained 
to  connect  the  peculiar  coemption  mancipation  of  Latin  particular 
law  (where  the  thought  enters  more  and  more  that  the  consensus 
of  man  and  wife  constitutes  the  basis  of  marriage)  with  the  "  dex- 
trarum  conjunctio"  of  the  Greeks  which  was  thought  to  fortify 
the  consensus ;  and  to  regard  them  as  common  survivals  of  the 
ancient  ceremonies  of  "hand  seizure."  .  .  . 

In  the  same  way  that  the  marriage  "foedus"  is  supplemented 
by  a  "sponsio,"  so  also  we  find  a  similar  element  in  the  inter- 
national "foedus."  This  is  discovered  of  the  Greeks  as  well  as 
the  Latins.  In  Homer  the  (nrovhai  are  still  a  complete  constituent 
in  the  solemn  oath  of  the  "foedus."  But  in  Greece  as  in  Latium, 
the  international  "sponsio"  became  detached  from  the  "foedus." 
It  takes  an  inferior  place  as  a  "fides"  act  alongside  the  supreme 
solemnity  of  the  sworn  agreement  of  alliance  in  a  similar  way 
that  in  the  celebration  of  marriage  by  "dextrarum  conjunctio" 
the  independent  and  preliminary  "sponsalia"  of  "dare"  of  the 
maiden  are  subordinate  to  the  marriage  itself.  And,  again,  the 
Latins  injected  a  general  proprietary  legal  idea  into  the  original 
conception  —  "dare  spondes,"  "spondeo"  —  in  the  same  manner 
that  the  general  institution  of  mancipation  attached  itself  to  the 
ancient  matrimonial  mancipation.  They  gave  it  a  technical  mean- 
ing which  could  not  be  constructed  out  of  the  Greek  language  for 
a  similar  legal  transaction.     But  they  always  acknowledged  that 


494  THINGS  [Part  III. 

the  Greeks  also  had  a  general  "sponslo  juris  gentium."  The 
Laws  of  Gortyn  have  furnished  the  most  convincing  proof  for  the 
Greek  eTna-irevheiv. 

We  may,  therefore,  assert  that  the  sponsio,  the  libation  solem- 
nity (and,  only  later,  the  declaration  that  one  undertakes  the 
solemnity  —  the  verbal  act)  is  a  "fides"  act  which  has  appeared 
among  the  Indians,  Greeks,  and  Latins ;  even  though  in  varying 
form,  yet  in  such  manner  that  it  can  be  traced  back  to  pre-ethnic 
tribal  society.  In  Latium  it  was  a  weaker  form  of  "fides"  obliga- 
tion by  the  side  of  the  precise  central  act  of  the  marriage  alliance, 
and  alongside  of  the  international  alliance  which  was  entered  into 
with  the  fullest  solemnity  of  the  oath.  But  in  Latium  it  developed, 
as  in  Gortyn,  into  a  special  formal  act  for  undertaking  proprietary 
performances.  With  the  declaration  eirKTirehw,  "spondeo,"  a 
man  pledged  his  word  to  carry  out  a  promise.  A  residue  of  the 
time  when  the  "  sponsio"  was  a  sacral  act,  a  libation  to  the  gods,  is 
found  in  the  fact  that  the  condition  of  being  "reus"  sprang  from 
the  Latin  "sponsio,"  and  also  from  the  "  votum."  Being  "reus" 
signifies  a  sacral  legal  obligation  of  a  special  kind.  But  in  other 
respects  the  obligation  of  the  votary  is  something  quite  different 
from  that  of  sponsor.  As  soon  as  the  gods  have  done  their  part, 
the  votary  by  reason  of  the  real  act  of  the  gods  becomes  a  "voti 
damnas";  and  no  "fides"  relation  subsists  between  him  and  the 
gods.  The  obligation  of  "fides"  through  the  pledge  of  one's  word 
can  obtain  only  between  persons,  and  not  between  gods  and  men. 

Such  an  obligation  by  pledging  one's  word,  however,  appears 
in  Latium  in  still  other  forms  than  that  of  "sponsio."  Especially 
important  in  this  regard  is  the  use  of  the  word  "  vas,"  and  besides 
and  of  yet  greater  importance,  the  word  "prses."  In  the  sense  of 
wager,  "vas"  has  had  a  far-reaching  extension  in  Indo-Germanic 
speech  to  indicate  an  obligatory  relation.  It  is  indispensably  neces- 
sary to  investigate  closely  the  wager  transaction  from  every  side. 
Linguistically  "vas"  and  "prses"  are  related  ;  but  the  actual  con- 
nections between  them  remain  to  be  explained.  Since  in  Latium  a 
plurality  of  formal  acts  was  employed,  so  also  do  we  find  in  Gortyn 
five  methods  of  creating  an  obligatory  relation  enumerated  .  .  .  the 
individual  relations  of  which  to  eTriairevhaiv  remain  undiscovered. 
Again,  however,  all  formal  acts  also  require  explanation  as  to  their 
exact  connections  with  the  law  of  slavery  for  debt. 

Large  provinces  of  this  domain  are  still  unexplored.  Inasmuch, 
however,  as  we  are  able  to  distinguish  the  leading  land-marks  of 
these  inquiries,  and  even  though  in  detail  our  explanations  may  be 


Chap.  XXVII,  §  1.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  495 

wholly  defective,  yet  we  may  hope  that  in  time  we  may  make  prog- 
ress in  knowledge  of  individual  institutions.  For  the  present, 
we  may  venture  a  generalization.  Aryan  antiquity,  grounded  on 
the  ethical  command  of  fidelity,  already  recognized  promises 
("nudae  pactiones")  as  having  a  certain  binding  force.  The  com- 
positions for  debt  arising  from  defamation,  battery,  and  theft 
("pacta  de  non  petendo")  especially  are  very  ancient.  But 
pacts  of  a  positive  content  did  not  have  a  position  sufficiently 
fixed  to  be  considered  as  generally  obligatory.  They  were  open  to 
the  objection  that  they  need  not  be  considered  as  binding  by  the 
debtor.  It  was  otherwise,  however,  when  in  answer  to  a  formally 
worded  question,  one  used  the  definite  technical  term  "spondeo," 
"vas,"  or  "prses,"  and  thus  gave  his  word  the  same  value  as  a 
pledge  of  a  thing.  In  this  way  the  formal  contract  arose.  In 
different  countries  a  great  diversity  of  such  forms,  of  course,  could 
come  into  being ;  but  in  the  Aryan  countries  there  would  still  be 
historical  connections  between  these  different  terms  which  can 
be  traced  out. 

4.    Real  Acts 

...  In  the  age  when  Themis  and  "fas"  law  dominates,  the 
real  act  has,  as  is  self-apparent,  a  high  importance.  Where  there 
is  no  judge  appointed  by  the  State  to  protect  one's  claims,  the 
security  which  one  has  for  the  physical  taking  and  holding  of  things 
is  all  the  more  valuable.  The  transaction  of  sale,  for  example, 
apart  from  all  legal  protection,  has  its  guaranty  in  that  it  is  a  cash 
operation,  where  the  thing  is  not  delivered  until  the  price  is  paid. 
On  the  other  hand,  where  one  delivers  the  object  of  sale  without 
receiving  the  price,  then  there  is  involved  a  relation  of  trust,  as 
where  a  thing  is  leased  to  another ;  in  which  case,  upon  the  expi- 
ration of  the  appropriate  time,  the  thing  may  be  taken  back  by 
force  according  to  "fas"  law.  It  is  not  my  object  to  follow  the 
dominion  of  real  relations  in  all  their  points  of  view.  But  it  is 
my  purpose  to  enter  in  the  inquiry,  how  in  pre-ethnic  Graeco- 
Italic  ages  one  is  able  to  obtain  real  security  apart  from  formal 
transactions.  Undoubtedly  the  giving  of  pledges  already  served 
the  purpose.  But  I  shall  examine  this  point  more  in  detail  later. 
However,  reference  must  be  made  here  to  the  pledge  of  the  hand  as 
a  real  act  for  the  creation  of  a  "fides"  obligation,  and  its  relation, 
on  one  side,  to  the  giving  of  a  pledge,  and,  on  the  other,  the  pledge 
of  one's  word  already  noticed,  in  a  formal  act. 

The  question  as  to  what  meaning  the  pledge  of  one's  hand,  the 


496  THINGS  [Part  III. 

Se^iaL,  the  "data  dextra,"  has  had  since  ancient  Aryan  times, 
will  seem  to  many  as  quite  unprofitably  raised.  It  is  thought  to 
be  an  act  so  simple  and  so  natural  as  to  make  any  effort  to  extract 
from  it  a  special  meaning  a  mistaken  labor.  But  the  extending 
of  the  hand  (like  kissing)  is  not  so  natural  that  it  had  the  same 
meaning  among  all  the  peoples  of  the  earth.  And,  with  reference 
to  those  peoples  which  know  the  custom,  it  cannot  be  said  that 
it  also  involves  a  special  juristic  significance.  What  has  elsewhere 
[in  the  original  w^ork]  been  brought  forward  from  Persian  sources 
with  regard  to  the  Ancient  Iranian  contract  doctrine  is  of  great 
interest.  It  appeared  there  that  the  hand-pledge  as  a  tie  of 
"fides"  had  the  same  function  as  the  giving  of  a  pledge.  The 
only  difference  is  that  in  an  actual  pledge  the  thing  which  the 
pledgee  receives  for  his  security  speaks  for  itself;  and  he  can 
always  make  it  plain  by  showing  the  pledge,  that  the  debtor  at 
the  time  of  making  the  pledge  acknowledged  himself  as  under  a 
duty  to  pay.  In  a  hand-pledge  the  pledgee,  of  course,  does  not 
take  with  him  the  pledge ;  it  is  not  chopped  off.  But  this  is  no 
counter  argument  for  the  primitive  legal  mind.  The  hand  even 
though  it  remains  with  the  pledgor  is  none  the  less  pledged. 
Ideally  it  is  just  as  much  pledged  as  if  it  were  an  independent  ob- 
ject. In  fact,  the  ideal  sense  of  obligation  is  so  firmly  established 
that  the  pledgee,  even  wdien  he  is  agent  for  another,  can  deliver 
the  pledge  in  an  ideal  sense  to  his  principal. 

But  the  need  of  providing  the  hand-pledgee  with  a  permanent 
token,  as  in  the  case  of  a  real  pledge,  by  which  he  can  prove  that 
at  a  certain  time  the  hand  was  pledged,  developed  the  practice  of 
placing  in  the  extended  hand  of  the  pledgee  an  object  which  the 
hand-pledgee  retained  as  evidence  of  the  obligation  of  "fides." 
I  have  already  shown  [elsewhere  in  the  original  work]  that  this 
ancient  Iranian  legal  theory  of  contractual  obligation  coincides  at 
all  points  w^ith  the  Greek  and  Latin  principles  concerning  the  crea- 
tion of  the  guest  relation.  Here,  also,  the  purpose  is  to  establish 
the  bond  of  "fides"  even  though  not  involving  a  single  proprietary 
performance.  It  is  always  founded  on  Se^tai,  "data  dextra." 
But  a  guest-present  is  also  added  as  a  permanent  token  of  the 
concluded  friendship,  and  it  is  also  possible  to  establish  an  "hos- 
pitium"  with  an  absent  person  by  sending  a  guest-present.  The 
similarity  of  the  Iranian  contractual  obligation  by  means  of  a 
hand-shake  and  the  Grseco-Italic  guest-contract  raises  the  sup- 
position that  the  interpretation  of  the  "data  dextra"  as  a  giving 
of  pledge  also  rests  on  the  same  ancient  Aryan  legal  conception 


i 


I 


Chap.  XXVII,  §  1.]      EVOLUTION    OF   THE    LAW    OF    COXTRACT  497 

This  supposition  is  in  fact  confirmed  by  our  Roman  sources.  Even 
in  later  Rome  this  interpretation  was  not  lost  —  giving  the  hand 
means  giving  consent ;  it  involves  the  bond  of  "fides"  ;  one  gives 
his  hand  as  a  pledge  of  performance;  and  the  "dextra"  is  the 
embodiment  of  "fides."  .  .  .  And,  again,  since  the  "dextra" 
is  the  incarnation  of  "fides,"  the  Greeks  and  Romans  readily  em- 
ployed the  "data  dextra"  in  the  highest  form  of  "fides"  obliga- 
tion, the  international  alliance.  .  .  .  Furthermore,  the  hand  is 
extended  in  salutation  to  indicate  a  friendh'  disposition  when  no 
alliance  or  contractual  obligation  is  in  question,  because  the 
"dextra  "  is  the  symbol  of  "fides." 

We  have  found,  despite  the  thick  obscurity  which  hangs  over 
the  pre-ethnic  contract  doctrine,  important  connections  between 
the  Iranian  contract  theory,  especially  in  its  descent  from  the  idea 
of  giving  pledge,  and  between  the  Roman  conceptions  of  real 
acts.  We  have  now  to  add  to  this  discussion  of  ancient  Aryan 
formal  and  real  acts  two  negative  propositions  which  may  be 
laid  down  with  considerable  assurance. 

The  first  proposition  is  that  even  though  the  Romans  carried 
along  the  ancient  "fas"  law  ideas  of  the  obligation  of  "fides" 
by  means  of  "data  dextra,"  still  they  did  not  adopt  it  in  their 
system  of  civil  contract  law.  They  did  not  recognize  any  prin- 
ciple, such  as  that  of  the  Persians,  that  invested  every  contract 
fortified  with  a  hand-pledge  with  legal  protection.  Still,  an  im- 
portant exception  must  be  noted.  The  ancient  Aryan  usage  of 
hand-seizure  in  the  matrimonial  ceremony  is  in  itself  the  taking 
hold  of  "potestas,"  which  the  Romans  carried  as  a  survival  into 
their  matrimonial  mancipation.  But  we  have  seen  that  from 
early  times  in  the  matrimonial  ceremony  of  hand-seizure,  there 
was  visible  the  seed  of  the  idea  that  it  involved  a  mutual  obliga- 
tion of  "fides."  The  farther  the  thought  developed  that  "consen- 
sus facit  nuptias,"  the  more  clearly  the  notion  was  received  among 
the  Greeks  and  Romans  that  the  "dextrarum  conjunctio"  was  the 
corporal  expression  of  this  consensus.  To  this  extent  we  may 
say,  also,  that  the  "dextra  data"  as  a  "  fides  "-obligation  act 
became  a  parcel  of  Roman  civil  law. 

The  second  negative  proposition  relates  to  the  formal  act  of 
pledging  one's  word,  as  we  found  it  distinctly  formulated  in  the 
Iranian  contract  theory.  In  my  exposition  of  the  elements  of  the 
formal  act,  I  have  intentionally  dwelt  on  the  word-pledge,  be- 
cause it  corresponds  with  ideas  of  Germanic  law.  It  is  not  even 
entirely  foreign  to  our  present-day  ideas  to  speak  of  "pledging 


498  THINGS  [Part  III. 

one's  word,"  or  of  "redeeming  the  given  word."^  But  in  the 
Roman  sources  I  think  no  trace  of  such  a  conception  can  be 
found.  The  Roman  interpretation  of  this  matter —"  spondeo," 
"vas,"  "prses"  —  rests  on  original  foundations.  We  may  ac- 
cordingly draw  the  conclusion,  that  notwithstanding  the  wide 
extension  of  the  "  sponsio"  act  as  well  as  the  wager  act  throughout 
the  various  Aryan  peoples,  the  Latin-Roman  treatment  of  these 
contract  forms  developed  under  the  preponderant  influence  of 
strictly  national  tendencies. 

Section  2 

EARLY  HISTORY   OF   CONTRACT  2 

Neither  Ancient  Law  nor  any  other  source  of  evidence  discloses 
to  us  society  entirely  destitute  of  the  conception  of  Contract. 
But  the  conception,  when  it  first  shows  itself,  is  obviously  rudi- 
mentary. No  trustworthy  primitive  record  can  be  read  without 
perceiving  that  the  habit  of  mind  which  induces  us  to  make  good 
a  promise  is  as  yet  imperfectly  developed,  and  that  acts  of  flagrant 
perfidy  are  often  mentioned  without  blame  and  sometimes  de- 
scribed with  approbation.  In  the  Homeric  literature,  for  instance, 
the  deceitful  cunning  of  LTlysses  appears  as  a  virtue  of  the  same 
rank  with  the  prudence  of  Nestor,  the  constancy  of  Hector,  and 
the  gallantry  of  Achilles.  Ancient  law  is  still  more  suggestive  of 
the  distance  which  separates  the  crude  form  of  Contract  from  its 
maturity.  At  first,  nothing  is  seen  like  the  interposition  of  law  to 
compel  the  performance  of  a  promise.  That  which  the  law  arms 
with  its  sanctions  is  not  a  promise,  but  a  promise  accompanied 
with  a  solemn  ceremonial.  Not  only  are  the  formalities  of  equal 
importance  with  the  promise  itself,  but  they  are,  if  anything,  of 
greater  importance;  for  that  delicate  analysis  which  mature 
jurisprudence  applies  to  the  conditions  of  mind  under  which  a 
particular  verbal  assent  is  given  appears,  in  ancient  law,  to  be 
transferred  to  the  words  and  gestures  of  the  accompanying  per- 
formance. No  pledge  is  enforced  if  a  single  form  be  omitted  or 
misplaced,  but,  on  the  other  hand,  if  the  forms  can  be  shown  to  have 
been  accurately  proceeded  with,  it  is  of  no  avail  to  plead  that 
the  promise  was  made  under  duress  or  deception.     The  transmuta- 

*  [Compare  here  the  etymologies  for  "  promise  "  and  "  pledge  "  cited  in 
Chapter  XXV  (supra)  See.  2  — "The  Pledge  Idea."] 

2  [By  Sir  Henry  S.  Maine.  Reprinted  from  "i' Ancient  Law,"  by  per- 
mission of  Henry  Holt  and  Company,  New  York.] 


Chap.  XXVII,  §2.]      EVOLUTION   OF   THE   Ui.W   OF   CONTRACT  499 

tion  of  this  ancient  view  into  the  familiar  notion  of  a  Contract  is 
plainly  seen  in  the  history  of  jurisprudence.  First  one  or  two 
steps  in  the  ceremonial  are  dispensed  with ;  then  the  others  are 
simplified  or  permitted  to  be  neglected  on  certain  conditions ;  lastly, 
a  few  specific  contracts  are  separated  from  the  rest  and  allowed 
to  be  entered  mto  without  form,  the  selected  contracts  being  those 
on  which  the  activity  and  energy  of  social  intercourse  depend. 
Slowly,  but  most  distinctly,  the  mental  engagement  isolates  itself 
amid  the  technicalities,  and  gradualh'  becomes  the  sole  ingredient 
on  which  the  mterest  of  the  jurisconsult  is  concentrated.  Such  a 
mental  engagement,  signified  through  external  acts,  the  Romans 
called  a  Pact  or  Convention ;  and  when  the  Convention  has  once 
been  conceived  as  the  nucleus  of  a  Contract,  it  soon  becomes  the 
tendency  of  advancing  jurisprudence  to  break  away  the  external 
shell  of  form  and  ceremony.  Forms  are  thenceforward  only  retained 
so  far  as  they  are  guarantees  of  authenticity  and  securities  for  cau- 
tion and  deliberation.  The  idea  of  a  Contract  is  fully  developed, 
or,  to  employ  the  Roman  phrase.  Contracts  are  absorbed  in  Pacts. 
The  history  of  this  course  of  change  in  Roman  law  is  exceedingly 
instructive.  At  the  earliest  dawn  of  jurisprudence,  the  term 
in  use  for  a  Contract  was  one  which  is  ver}^  familiar  to  the  students 
of  historical  Latinity.  It  was  nexum,  and  the  parties  to  the  con- 
tract were  said  to  be  nexi,  expressions  which  must  be  carefully 
attended  to  on  account  of  the  singular  durableness  of  the  metaphor 
on  which  they  are  founded.  The  notion  that  persons  under  a  con- 
tractual engagement  are  connected  together  by  a  strong  bond  or 
chain,  continued  till  the  last  to  influence  the  Roman  jurisprudence 
of  Contract ;  and  flowing  thence  it  has  mixed  itself  with  modern 
ideas.  What  then  was  involved  in  this  nexum  or  bond?  A 
definition  which  has  descended  to  us  from  one  of  the  Latin  anti- 
quarians describes  nexum  as  omne  quod  geritur  per  ces  et  libram, 
"every  transaction  with  the  copper  and  the  balance,"  and  these 
words  have  occasioned  a  good  deal  of  perplexity.  The  copper 
and  the  balance  are  the  well-known  accompaniments  of  the  ]Manci- 
pation,  the  ancient  solemnity  described  in  a  former  chapter,  by 
which  the  right  of  ownership  in  the  highest  form  of  Roman  Prop- 
erty was  transferred  from  one  person  to  another.  ^Mancipation 
was  a  conveyance,  and  hence  has  arisen  the  difficulty,  for  the 
definition  thus  cited  appears  to  confound  Contracts  and  Con- 
veyances, which  in  the  philosophy  of  jurisprudence  are  not  simply 
kept  apart,  but  are  actually  opposed  to  each  other.  The  jus  in  re, 
right  in  rem,  right  "availing  against  all  the  world,"  or  Proprietary 


500  THINGS  [Part  III. 

Right,  is  sharply  distinguished  by  the  analyst  of  mature  jurispru- 
dence from  the  jus  ad  rem,  right  in  personam,  right  "  availing  against 
a  single  individual  or  group,"  or  Obligation.  Now  Conveyances 
transfer  Proprietary  Rights,  Contracts  create  Obligations  —  how 
then  can  the  two  be  included  under  the  same  name  or  same  general 
conception?  This,  like  many  similar  embarrassments,  has  been 
occasioned  by  the  error  of  ascribing  to  the  mental  condition  of  an 
unformed  society  a  faculty  which  pre-eminently  belongs  to  an 
advanced  stage  of  intellectual  development,  the  faculty  of  dis- 
tinguishing in  speculation  ideas  which  are  blended  in  practice. 
We  have  indications  not  to  be  mistaken  of  a  state  of  social  affairs 
in  which  Conveyances  and  Contracts  were  practically  confounded  ; 
nor  did  the  discrepance  of  the  conceptions  become  perceptible  till 
men  had  begun  to  adopt  a  distinct  practice  in  contracting  and 
conveying. 

It  may  here  be  observed  that  we  know  enough  of  ancient  Roman 
law  to  give  some  idea  of  the  mode  of  transformation  followed  by 
legal  conceptions  and  by  legal  phraseology  in  the  infancy  of  Juris- 
prudence. The  change  which  they  undergo  appears  to  be  a  change 
from  general  to  special ;  or,  as  we  might  otherwise  express  it,  the 
ancient  conceptions  and  the  ancient  terms  are  subjected  to  a 
process  of  gradual  specialisation.  An  ancient  legal  conception 
corresponds  not  to  one  but  to  several  modern  conceptions.  An 
ancient  technical  expression  serves  to  indicate  a  variety  of  things 
which  in  modern  law  have  separate  names  allotted  to  them. 
If,  however,  we  take  up  the  history  of  Jurisprudence  at  the  next 
stage,  we  find  that  the  subordinate  conceptions  have  gradually  dis- 
engaged themselves,  and  that  the  old  general  names  are  giving 
way  to  special  appellations.  The  old  general  conception  is  not 
obliterated,  but  it  has  ceased  to  cover  more  than  one  or  a  few  of  the 
notions  which  it  first  included.  So  too  the  old  technical  name 
remains,  but  it  discharges  only  one  of  the  functions  which  it  once 
performed.  We  may  exemplify  this  phenomenon  in  various  ways. 
Patriarchal  Power  of  all  sorts  appears,  for  instance,  to  have  been 
once  conceived  as  identical  in  character,  and  it  was  doubtless  dis- 
tinguished by  one  name.  The  Power  exercised  by  the  ancestor  was 
the  same  whether  it  was  exercised  over  the  family  or  the  material 
property  —  over  flocks,  herds,  slaves,  children,  or  wife.  We  can- 
not be  absolutely  certain  of  its  old  Roman  name,  but  there  is  very 
strong  reason  for  believing,  from  the  number  of  expressions  indicat- 
ing shades  of  the  notion  of  yower  into  which  the  word  manus  enters, 
that  the  ancient  general  term  was  manus.     But,  when  Roman 


Chap.  XXVII,  §2.]      EVOLUTION   OF  THE    LAW   OF   CONTRACT  501 

law  has  advanced  a  little,  both  the  name  and  the  idea  have  become 
specialised.  Power  is  discriminated,  both  in  word  and  in  concep- 
tion, according  to  the  object  over  which  it  is  exerted.  Exercised 
over  material  commodities  or  slaves,  it  has  become  dominium  — 
over  children,  it  is  Potestas  —  over  free  persons  whose  services 
have  been  made  away  to  another  by  their  own  ancestor,  it  is 
mancipium  —  over  a  wife,  it  is  still  manus.  The  old  word,  it  will 
be  perceived,  has  not  altogether  fallen  into  desuetude,  but  is  con- 
fined to  one  very  special  exercise  of  the  authority  it  had  formerly 
denoted.  This  example  will  enable  us  to  comprehend  the  nature 
of  the  historical  alliance  between  Contracts  and  Conveyances. 
There  seems  to  have  been  one  solemn  ceremonial  at  first  for  all 
solemn  transactions,  and  its  name  at  Rome  appears  to  have  been 
nexum.  Precisely  the  same  forms  which  were  in  use  when  a  con- 
veyance of  property  was  effected  seem  to  have  been  employed  in  the 
making  of  a  contract.  But  we  have  not  very  far  to  move  onwards 
before  we  come  to  a  period  at  which  the  notion  of  a  Contract 
has  disengaged  itself  from  the  notion  of  a  Conveyance.  A 
double  change  has  thus  taken  place.  The  transaction  "with  the 
copper  and  the  balance,"  when  intended  to  have  for  its  office 
the  transfer  of  property,  is  known  by  the  new  and  special  name  of 
Mancipation.  The  ancient  Nexum  still  designates  the  same  cere- 
mony, but  only  when  it  is  employed  for  the  special  purpose  of 
solemnising  a  contract. 

When  two  or  three  legal  conceptions  are  spoken  of  as  anciently 
blended  in  one,  it  is  not  intended  to  imply  that  some  one  of  the 
included  notions  may  be  not  older  than  the  others,  or,  when  those 
others  have  been  formed,  may  not  greatly  predominate  over  and 
take  precedence  of  them.  The  reason  why  one  legal  conception 
continues  so  long  to  cover  several  conceptions,  and  one  technical 
phrase  to  do  instead  of  several,  is  doubtless  that  practical  changes 
are  accomplished  in  the  law  of  primitive  societies  long  before  men 
see  occasion  to  notice  or  name  them.  Though  I  have  said  that 
Patriarchal  Power  was  not  at  first  distinguished  according  to  the 
objects  over  which  it  was  exercised,  I  feel  sure  that  Power  over 
Children  was  the  root  of  the  old  conception  of  Power ;  and  I  cannot 
doubt  that  the  earliest  use  of  the  Xexum,  and  the  one  primarily 
regarded  by  those  who  resorted  to  it,  was  to  give  proper  solemnity 
to  the  alienation  of  property.  It  is  likely  that  a  very  slight  per- 
version of  the  Nexum  from  its  original  functions  first  gave  rise  to 
its  employment  in  Contracts,  and  that  the  very  slightness  of  the 
change  long  prevented  its  being  appreciated  or  noticed.     The  old 


502  THINGS  [Part  III. 

name  remained  because  men  had  not  become  conscious  that  they 
wanted  a  new  one ;  the  old  notion  ckuig  to  the  mind  because  no- 
body had  seen  reason  to  be  at  the  pains  of  examining  it.  We  have 
had  the  process  clearly  exemplified  in  the  history  of  Testaments. 
A  Will  was  at  first  a  simple  conveyance  of  Property.  It  was  only 
the  enormous  practical  difference  that  gradually  showed  itself 
between  this  particular  conveyance  and  all  others  which  caused  it 
to  be  regarded  separately,  and  even  as  it  was,  centuries  elapsed 
before  the  ameliorators  of  law  cleared  away  the  useless  encum- 
brance of  the  nominal  mancipation,  and  consented  to  care  for 
nothing  in  the  Will  but  the  expressed  intentions  of  the  Testator. 
It  is  unfortunate  that  we  cannot  track  the  early  history  of  Con- 
tracts with  the  same  absolute  confidence  as  the  early  history  of 
Wills,  but  we  are  not  quite  without  hints  that  contracts  first 
showed  themselves  through  the  nexum  being  put  to  a  new  use  and 
afterwards  obtained  recognition  as  distinct  transactions  through 
the  important  practical  consequences  of  the  experiment.  There 
is  some,  but  not  very  violent,  conjecture  in  the  following  delinea- 
tion of  the  process.  Let  us  conceive  a  sale  for  ready  money  as  the 
normal  type  of  the  Nexum.  The  seller  brought  the  property  of 
which  he  intended  to  dispose  —  a  slave,  for  example  —  the  pur- 
chaser attended  with  the  rough  ingots  of  copper  which  served  for 
money  —  and  an  indispensable  assistant,  the  lihripens,  presented 
himself  with  a  pair  of  scales.  The  slave  with  certain  fixed  formal- 
ities was  handed  over  to  the  vendee  —  the  copper  was  weighed 
by  the  lihripens  and  passed  to  the  vendor.  So  long  as  the  business 
lasted  it  was  a  nexum,  and  the  parties  were  7iexi;  but  the  moment 
it  was  completed,  the  nexum  ended,  and  the  vendor  and  purchaser 
ceased  to  bear  the  name  derived  from  their  momentary  relation. 
But  now,  let  us  move  a  step  onward  in  commercial  history.  Sup- 
pose the  slave  transferred,  but  the  money  not  paid.  In  that  case, 
the  nexum  is  finished,  so  far  as  the  seller  is  concerned,  and  when 
he  has  once  handed  over  his  property,  he  is  no  longer  nexus  ;  but, 
in  regard  to  the  purchaser,  the  nexum  continues.  The  transac- 
tion, as  to  his  part  of  it,  is  incomplete,  and  he  is  still  considered  to 
be  nexus.  It  follows,  therefore,  that  the  same  term  described  the 
conveyance  by  which  the  right  of  property  was  transmitted,  and 
the  personal  obligation  of  the  debtor  for  the  unpaid  purchase- 
money.  We  may  still  go  forward,  and  picture  to  ourselves  a 
proceeding  wholly  formal,  in  which  nothing  is  handed  over  and 
nothing  paid  ;  we  are  brought  at  once  to  a  transaction  indicative 
of  much  higher  commercial  activity,  an  executory  Contract  of  Sale. 


Chap.  XXVII,  §2.]      EVOLUTIOX   OF   THE    LAW   OF   CONTRACT  503 

If  it  be  true  that,  both  in  the  popular  and  in  the  professional 
view,  a  Contract  was  long  regarded  as  an  incomplete  Conveyance,  the 
truth  has  importance  for  many  reasons.  The  speculations  of  the 
last  century  concerning  mankind  in  a  state  of  nature,  are  not 
unfairly  summed  up  in  the  doctrine  that  "  in  the  primitive  society 
property  was  nothing,  and  obligation  everything";  and  it  will 
now  be  seen  that,  if  the  proposition  were  reversed,  it  would  be 
nearer  the  reality.  On  the  other  hand,  considered  historically, 
the  primitive  association  of  Conveyances  and  Contracts  explains 
something  which  often  strikes  the  scholar  and  jurist  as  singularly 
enigmatical,  I  mean  the  extraordinary  and  uniform  severity  of 
very  ancient  systems  of  law  to  debtors,  and  the  extravagant  powers 
which  they  lodge  with  creditors,  ^^^len  once  we  understand  that 
the  nexum  was  artificially  prolonged  to  give  time  to  the  debtor,  we 
can  better  comprehend  his  position  in  the  eye  of  the  public  and  of 
the  law.  His  indebtedness  was  doubtless  regarded  as  an  anomaly, 
and  suspense  of  payment  in  general  as  an  artifice  and  a  distortion 
of  strict  rule.  The  person  who  had  duly  consummated  his  part 
in  the  transaction  must,  on  the  contrary,  have  stood  in  peculiar 
favour ;  and  nothing  would  seem  more  natural  than  to  arm  him 
with  stringent  facilities  for  enforcing  the  completion  of  a  proceeding 
which,  of  strict  right,  ought  never  to  have  been  extended  or  deferred. 

Xexum,  therefore,  which  originally  signified  a  Conveyance  of 
property,  came  insensibly  to  denote  a  Contract  also,  and  ulti- 
mately so  constant  became  the  association  between  this  word  and 
the  notion  of  a  Contract,  that  a  special  term,  ^Nlancipium  or 
INIancipatio,  had  to  be  used  for  the  purpose  of  designating  the  true 
nexum  or  transaction  in  which  the  property  was  really  transferred. 
Contracts  are  therefore  now  severed  from  Conveyances,  and  the 
first  stage  in  their  history  is  accomplished,  but  still  they  are  far 
enough  from  that  epoch  of  their  development  when  the  promise  of 
the  contractor  has  a  higher  sacredness  than  the  formalities  with 
which  it  is  coupled.  In  attempting  to  indicate  the  character  of 
the  changes  passed  through  in  this  interval,  it  is  necessary  to 
trespass  a  little  on  a  subject  which  lies  properly  beyond  the  range 
of  these  pages,  the  analysis  of  Agreement  effected  by  the  Roman 
jurisconsults.  Of  this  analysis,  the  most  beautiful  monument 
of  their  sagacity,  I  need  not  say  more  than  that  it  is  based  on  the 
theoretical  separation  of  the  Obligation  from  the  Convention  or 
Pact.  Bentham  and  INIr.  Austin  have  laid  down  that  the  "two 
main  essentials  of  a  contract  are  these :  first,  a  signification  by 
the  promising  party  of  his  intention  to  do  the  acts  or  to  observe 


504  THINGS  [Pabt  III. 

the  forbearances  which  he  promises  to  do  or  to  observe.  Secondly, 
a  signification  by  the  promisee  that  he  expects  the  promising 
party  will  fulfil  the  proffered  promise."  This  is  virtually  identical 
with  the  doctrine  of  the  Roman  lawyers,  but  then,  in  their  view, 
the  result  of  these  "significations"  was  not  a  Contract,  but  a 
Convention  or  Pact.  A  Pact  was  the  utmost  product  of  the  en- 
gagements of  individuals  agreeing  among  themselves,  and  it 
distinctly  fell  short  of  a  Contract.  Whether  it  ultimately  became 
a  Contract  depended  on  the  question  whether  the  law  annexed 
an  Obligation  to  it.  A  Contract  was.  a  Pact  (or  Convention) 
yliis  an  Obligation.  So  long  as  the  Pact  remained  unclothed 
with  the  Obligation  it  was  called  nude  or  naked. 

What  was  an  Obligation?  It  is  defined  by  the  Roman  lawyers 
as  "Juris  vinculum,  quo  necessitate  adstringimur  alicujus  sol- 
vendse  rei."  This  definition  connects  the  Obligation  with  the 
Nexum  through  the  common  metaphor  on  which  they  are  founded, 
and  shows  us  with  much  clearness  the  pedigree  of  a  peculiar  con- 
ception. The  Obligation  is  the  "bond"  or  "chain,"  with  which 
the  law  joins  together  persons  or  groups  of  persons,  in  consequence 
of  certain  voluntary  acts.  The  acts  which  have  the  effect  of 
attracting  an  Obligation  are  chiefly  those  classed  under  the  heads 
of  Contract  and  Delict,  of  Agreement  and  Wrong ;  but  a  variety 
of  other  acts  have  a  similar  consequence  which  are  not  capable 
of  being  comprised  in  an  exact  classification.  It  is  to  be  remarked, 
however,  that  the  Pact  does  not  draw  to  itself  the  Obligation  in 
consequence  of  any  moral  necessity ;  it  is  the  law  which  annexes 
it  in  the  plenitude  of  its  power,  a  point  the  more  necessary  to 
be  noted,  because  a  different  doctrine  has  sometimes  been  pro- 
pounded by  modern  interpreters  of  the  Civil  Law  who  had  moral 
or  metaphysical  theories  of  their  own  to  support.  The  image  of 
a  vinculum  juris  colours  and  pervades  every  part  of  the  Roman 
law  of  Contract  and  Delict.  The  law  bound  the  parties  together, 
and  the  chain  could  only  be  undone  by  the  process  called  solutio, 
an  expression  still  figurative,  to  which  our  word  "payment"  is 
only  occasionally  and  incidentally  equivalent.  The  consistency 
with  which  the  figurative  image  was  allowed  to  present  itself, 
explains  an  otherwise  puzzling  peculiarity  of  Roman  legal  phrase- 
ology, the  fact  that  "Obligation"  signifies  rights  as  well  as  duties, 
the  right,  for  example,  to  have  a  debt  paid  as  well  as  the  duty  of 
paying  it.  The  Romans  kept,  in  fact,  the  entire  picture  of  the 
"legal  chain"  before  their  eyes,  and  regarded  one  end  of  it  no  more 
and  no  less  than  the  other. 


Chap.  XXVII,  §2.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  505 

In  the  developed  Roman  law,  the  Convention,  as  soon  as  it 
was  completed,  was,  in  almost  all  cases,  at  once  crowned  with  the 
Obligation,  and  so  became  a  Contract ;  and  this  was  the  result 
to  which  contract-law  was  surely  tending.  But  for  the  purpose 
of  this  inquiry,  we  must  attend  particularly  to  the  intermediate 
stage  —  that  in  which  something  more  than  a  perfect  agreement 
was  required  to  attract  the  obligation.  This  epoch  is  synchronous 
with  the  period  at  which  the  famous  Roman  classification  of  Con- 
tracts into  four  sorts  —  the  Verbal,  the  Literal,  the  Real,  and  the 
Consensual  —  had  come  into  use,  and  during  which  these  four 
orders  of  contract  constituted  the  only  descriptions  of  engagement 
which  the  law  would  enforce.  The  meaning  of  the  fourfold  dis- 
tribution is  readily  understood  as  soon  as  we  apprehend  the  theory 
which  severed  the  Obligation  from  the  Convention.  Each  class 
of  contracts  was  in  fact  named  from  certain  formalities  which 
were  required  over  and  above  the  mere  agreement  of  the  contract- 
ing parties.  In  the  Verbal  Contract,  as  soon  as  the  Convention 
was  effected,  a  form  of  words  had  to  be  gone  through  before  the 
"vinculum  juris"  was  attached  to  it.  In  the  Literal  Contract, 
an  entry  in  a  ledger  or  table-book  had  the  effect  of  clothing  the 
Convention  with  the  Obligation,  and  the  same  result  followed, 
in  the  case  of  the  Real  Contract,  from  the  delii^ery  of  the  Res 
or  Thing  which  was  the  subject  of  the  preliminary  engagement. 
The  contracting  parties  came,  in  short,  to  an  understanding  in 
each  case ;  but,  if  they  went  no  further,  they  were  not  obliged 
to  one  another  and  could  not  compel  performance  or  ask  redress 
for  a  breach  of  faith.  But  let  them  comply  with  certain  prescribed 
formalities,  and  the  Contract  was  immediately  complete,  taking 
its  name  from  the  particular  form  which  it  had  suited  them  to 
adopt.     The  exceptions  to  this  practice  will  be  noticed  presently. 

I  have  enumerated  the  four  Contracts  in  their  historical  order, 
which  order,  however,  the  Roman  Institutional  writers  did  not 
invariably  follow.  There  can  be  no  doubt  that  the  Verbal  Con- 
tract was  the  most  ancient  of  the  four,  and  that  it  is  the  eldest 
known  descendant  of  the  primitive  Nexum.  Several  species  of 
Verbal  Contract  were  anciently  in  use,  but  the  most  important 
of  all,  and  the  only  one  treated  of  by  our  authorities,  was  effected 
by  means  of  a  stipulation,  that  is,  a  Question  and  Answer;  a 
question  addressed  by  the  person  who  exacted  the  promise,  and 
an  answer  given  by  the  person  who  made  it.  This  question  and 
answer  constituted  the  additional  ingredient  which,  as  I  have 
just  explained,  was  demanded  by  the  primiti^^e  notion  over  and 


506  THINGS  [Pabt  III. 

above  the  mere  agreement  of  the  persons  interested.  They  formed 
the  agency  by  which  the  Obhgation  was  annexed.  The  old  Nexum 
has  now  bequeathed  to  maturer  jurisprudence  first  of  all  the  con- 
ception of  a  chain  uniting  the  contracting  parties,  and  this  has 
become  the  Obligation.  It  has  further  transmitted  the  notion  of 
a  ceremonial  accompanying  and  consecrating  the  engagement, 
and  this  ceremonial  has  been  transmuted  into  the  Stipulation. 
The  conversion  cf  the  solemn  conveyance,  which  was  the  promi- 
nent featureof  the  original  Nexum,  into  a  mere  question  and  answer, 
would  be  more  of  a  mystery  than  it  is  if  we  had  not  the  analogous 
history  of  Roman  Testaments  to  enlighten  us.  Looking  at  that 
history,  we  can  understand  how  the  formal  conveyance  was  first 
separated  from  the  part  of  the  proceeding  which  had  immediate 
reference  to  the  business  in  hand,  and  how  afterwards  it  was 
omitted  altogether.  As  then  the  question  and  answ^er  of  the 
Stipulation  were  unquestionably  the  Nexum  in  a  simplified  shape, 
we  are  prepared  to  find  that  they  long  partook  of  the  nature  of  a 
technical  form.  It  would  be  a  mistake  to  consider  them  as  ex- 
clusively recommending  themselves  to  the  older  Roman  lawyers 
through  their  usefulness  in  furnishing  persons  meditating  an 
agreement  with  an  opportunity  for  consideration  and  reflection. 
It  is  not  to  be  disputed  that  they  had  a  value  of  this  kind,  which 
was  gradually  recognised ;  but  there  is  proof  that  their  function 
in  respect  to  Contracts  was  at  first  formal  and  ceremonial  in  the 
statement  of  our  authorities,  that  not  every  question  and  answer 
was  of  old  sufficient  to  constitute  a  Stipulation,  but  only  a  question 
and  answer  couched  in  technical  phraseology  specially  appro- 
priated to  the  particular  occasion. 

But  although  it  is  essential  for  the  proper  appreciation  of  the 
history  of  contract-law  that  the  Stipulation  should  be  understood 
to  have  been  looked  upon  as  a  solemn  form  before  it  was  recognised 
as  a  useful  security,  it  would  be  wrong  on  the  other  hand  to  shut 
our  eyes  to  its  real  usefulness.  The  Verbal  Contract,  though  it 
had  lost  much  of  its  ancient  importance,  survived  to  the  latest 
period  of  Roman  jurisprudence ;  and  we  may  take  it  for  granted 
that  no  institution  of  Roman  law  had  so  extended  a  longevity 
unless  it  served  some  practical  advantage.  I  observe  in  an 
English  writer  some  expressions  of  surprise  that  the  Romans 
even  of  the  earliest  times  w^ere  content  with  so  meagre  a  protection 
against  haste  and  irreflection.  But  on  examining  the  Stipulation 
closely,  and  remembering  that  we  have  to  do  with  a  state  of  society 
in  which  written  evidence  was  not  easily  procurable,  I  think  we 


Chap.  XXVII,  §2.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  507 

must  admit  that  this  Question  and  Answer,  had  it  been  expressly 
devised  to  answer  the  purpose  which  it  served,  would  have  been 
justly  designated  a  highly  ingenious  expedient.  It  was  the 
promisee  who,  in  the  character  of  stipulator,  put  all  the  terms  of 
the  contract  into  the  form  of  a  question,  and  the  answer  was  given 
by  the  promisor.  "Do  you  promise  that  you  will  deliver  me  such 
and  such  a  slave,  at  such  and  such  a  place,  on  such  and  such  a 
day?"  "I  do  promise."  Now,  if  we  reflect  for  a  moment,  we 
shall  see  that  this  obligation  to  put  the  promise  interrogativeh' 
inverts  the  natural  position  of  the  parties,  and,  by  effectually 
breaking  the  tenor  of  the  conversation,  prevents  the  attention 
from  gliding  over  a  dangerous  pledge.  With  us,  a  verbal  promise 
is,  generally  speaking,  to  be  gathered  exclusively  from  the  words 
of  the  promisor.  In  old  Roman  law,  another  step  was  absolutely 
required ;  it  was  necessary  for  the  promisee,  after  the  agreement 
had  been  made,  to  sum  up  all  its  terms  in  a  solemn  interrogation ; 
and  it  was  of  this  interrogation,  of  course,  and  of  the  assent  to  it, 
that  proof  had  to  be  given  at  the  trial  —  not  of  the  promise,  which 
was  not  in  itself  binding.  How  great  a  difference  this  seemingly 
insignificant  peculiarity  may  make  in  the  phraseology  of  contract- 
law  is  speedily  realised  by  the  beginner  in  Roman  jurisprudence, 
one  of  whose  first  stumbling-blocks  is.  almost  universally  created 
by  it.  When  we  in  English  have  occasion,  in  mentioning  a  con- 
tract, to  connect  it  for  convenience'  sake  with  one  of  the  parties, 
—  for  example,  if  we  wished  to  speak  generall}'  of  a  contractor,  — 
it  is  always  the  promisor  at  whom  our  words  are  pointing.  But 
the  general  language  of  Roman  law  takes  a  different  turn ;  it 
always  regards  the  contract,  if  we  may  so  speak,  from  the  point 
of  view  of  the  promisee ;  in  speaking  of  a  party  to  a  contract,  it 
is  always  the  Stipulator,  the  person  who  asks  the  question,  who  is 
primarily  alluded  to.  But  the  serviceableness  of  the  stipulation 
is  most  vividly  illustrated  by  referring  to  the  actual  examples 
in  the  pages  of  the  Latin  comic  dramatists.  If  the  entire  scenes 
are  read  down  in  which  these  passages  occur  (ex.  gra.  Plautus, 
Pseiidolus,  Act  I.  sc.  1 ;  Act  IV.  sc.  6  ;  Trinummus,  Act  V.  sc.  2), 
it  will  be  perceived  how  effectually  the  attention  of  the  person 
meditating  the  promise  must  have  been  arrested  by  the  question, 
and  how  ample  was  the  opportunity  for  withdrawal  from  an  im- 
provident undertaking. 

In  the  Literal  or  Written  Contract,  the  formal  act  by  which 
an  Obligation  was  superinduced  on  the  Con^'ention,  was  an  entry 
of  the  sum  due,  where  it  could  be  specifically  ascertained,  on  the 


508  THINGS  [Part  III. 

debit  side  of  a  ledger.  The  explanation  of  this  contract  turns 
on  a  point  of  Roman  domestic  manners,  the  systematic  character 
and  exceeding  regularity  of  book-keeping  in  ancient  times.  There 
are  several  minor  difficulties  of  old  Roman  law,  as,  for  example, 
the  nature  of  the  Slave's  Peculium,  which  are  only  cleared  up 
when  we  recollect  that  a  Roman  household  consisted  of  a  number 
of  persons  strictly  accountable  to  its  head,  and  that  every  single 
item  of  domestic  receipt  and  expenditure,  after  being  entered  in 
waste  books,  was  transferred  at  stated  periods  to  a  general  house- 
hold ledger.  There  are  some  obscurities,  however,  in  the  descrip- 
tions we  have  received  of  the  Literal  Contract,  the  fact  being 
that  the  habit  of  keeping  books  ceased  to  be  universal  in  later 
times,  and  the  expression  "Literal  Contract"  came  to  signify 
a  form  of  engagement  entirely  different  from  that  originally  under- 
stood. We  are  not,  therefore,  in  a  position  to  say,  with  respect  to 
the  primitive  Literal  Contract,  whether  the  obligation  was  created 
by  a  simple  entry  on  the  part  of  the  creditor,  or  whether  the  con- 
sent of  the  debtor  or  a  correspondent  entry  in  his  own  books  was 
necessary  to  give  it  legal  effect.  The  essential  point  is  however 
established,  that,  in  the  case  of  this  Contract,  all  formalities  were 
dispensed  with  on  a  condition  being  complied  with.  This  is 
another  step  downw^ards  in  the  history  of  contract-law. 

The  Contract  which  stands  next  in  historical  succession,  the 
Real  Contract,  shows  a  great  advance  in  ethical  conceptions. 
Whenever  any  agreement  had  for  its  object  the  delivery  of  a 
specific  thing  —  and  this  is  the  case  with  the  large  majority  of 
simple  engagements  —  the  Obligation  was  drawn  down  as  soon 
as  the  delivery  had  actually  taken  place.  Such  a  result  must 
have  involved  a  serious  innovation  on  the  oldest  ideas  of  Contract ; 
for  doubtless,  in  the  primitive  times,  when  a  contracting  party 
had  neglected  to  clothe  his  agreement  in  a  stipulation,  nothing 
done  in  pursuance  of  the  agreement  would  be  recognised  by  the 
law.  A  person  who  had  paid  over  money  on  loan  would  be  unable 
to  sue  for  its  repayment  unless  he  had  formally  stipulated  for  it. 
But,  in  the  Real  Contract,  performance  on  one  side  is  allowed  to 
impose  a  legal  duty  on  the  other  —  evidently  on  ethical  grounds. 
•For  the  first  time  then  moral  considerations  appear  as  an  ingredient 
in  Contract-law,  and  the  Real  Contract  differs  from  its  two  pred- 
ecessors in  being  founded  on  these,  rather  than  on  respect  for 
technical  forms  or  on  deference  to  Roman  domestic  habits. 

We  now  reach  the  fourth  class,  or  Consensual  Contracts,  the 
most  interesting  and  important  of  all.     Four  specified  Contracts 


Chap.  XXVII,  §2.]      EVOLUTION   OF  THE    LAW   OF   CONTRACT  509 

were  distinguished  by  this  name :  Mandatum,  i.e.  Commission  or 
Agency  ;  Societas  or  Partnership  ;  Emptio  Venditio  or  Sale ;  and 
Locatio  Conductio  or  Letting  and  Hiring.  A  few  pages  back, 
after  stating  that  a  Contract  consisted  of  a  Pact  or  Convention  to 
which  an  Obhgation  had  been  superadded,  I  spoke  of  certain 
acts  or  formahties  by  which  the  law  permitted  the  Obligation  to 
be  attracted  to  the  Pact.  I  used  this  language  on  account  of  the 
advantage  of  a  general  expression,  but  it  is  not  strictly  correct 
unless  it  be  understood  to  include  the  negative  as  well  as  the 
positive.  For,  in  truth,  the  peculiarity  of  these  Consensual 
Contracts  is  that  no  formalities  are  required  to  create  them  out 
of  the  Pact.  IMuch  that  is  indefensible,  and  much  more  that  is 
obscure,  has  been  written  about  the  Consensual  Contracts,  and 
it  has  even  been  asserted  that  in  them  the  consent  of  the  Parties 
is  more  emphatically  given  than  in  any  other  species  of  agreement. 
But  the  term  Consensual  merely  indicates  that  the  Obligation  is 
here  annexed  at  once  to  the  Consensus.  The  Consensus,  or  mutual 
assent  of  the  parties,  is  the  final  and  crowning  ingredient  in  the 
Convention,  and  it  is  the  special  characteristic  of  agreements 
falling  under  one  of  the  four  heads  of  Sale,  Partnership,  Agency, 
and  Hiring,  that,  as  soon  as  the  assent  of  the  parties  has  supplied 
this  ingredient,  there  is  at  once  a  Contract.  The  Consensus  draws 
with  it  the  Obligation,  performing,  in  transactions  of  the  sort 
specified,  the  exact  functions  which  are  discharged,  in  the  other 
contracts,  by  the  Res  or  Thing,  by  the  J^erba  stipulationis,  and  by 
the  Literce  or  written  entry  in  a  ledger.  Consensual  is  therefore 
a  term  which  does  not  involve  the  slightest  anomaly,  but  is  exactly 
analogous  to  Real,  Verbal,  and  Literal. 


The  Consensual  Contracts,  it  will  be  observed,  were  extremely 
limited  in  number.  But  it  cannot  be  doubted  that  they  con- 
stituted the  stage  in  the  history  of  Contract-law  from  which  all 
modern  conceptions  of  contract  took  their  start.  The  motion 
of  the  will  which  constitutes  agreement  was  now  completely 
insulated,  and  became  the  subject  of  separate  contemplation  ; 
forms  were  entirely  eliminated  from  the  notion  of  contract,  and 
external  acts  were  only  regarded  as  sjinbols  of  the  internal  act 
of  volition.  The  Consensual  Contracts  had,  moreover,  been 
classed  in  the  Jus  Gentium,  and  it  was  not  long  before  this  classi- 
fication drew  with  it  the  inference  that  they  were  the  species  of 
agreement  which  represented  the  engagements  approved  of  by 


510  THINGS  [Part  III. 

Nature  and  included  in  her  code.  This  point  once  reached,  we 
are  prepared  for  several  celebrated  doctrines  and  distinctions  of 
the  Roman  lawyers.  One  of  them  is  the  distinction  between 
Natural  and  Civil  Obligations.  When  a  person  of  full  intellectual 
maturity  had  deliberately  bound  himself  by  an  engagement,  he 
was  said  to  be  under  a  natural  ohligation,  even  though  he  had 
omitted  some  necessary  formality,  and  even  though  through  some 
technical  impediment  he  was  devoid  of  the  formal  capacity  for 
making  a  valid  contract.  The  law  (and  this  is  what  the  distinction 
implies)  would  not  enforce  the  obligation,  but  it  did  not  absolutely 
refuse  to  recognise  it ;  and  natural  obligations  differed  in  many 
respects  from  obligations  which  were  merely  null  and  void,  more 
particularly  in  the  circumstance  that  they  could  be  civilly  con- 
firmed, if  the  capacity  for  contract  were  subsequently  acquired. 
Another  very  peculiar  doctrine  of  the  jurisconsults  could  not  have 
had  its  origin  earlier  than  the  period  at  which  the  Convention 
was  severed  from  the  technical  ingredients  of  Contract.  They 
taught  that  though  nothing  but  a  Contract  could  be  the  founda- 
tion of  an  action,  a  mere  Pact  or  Convention  could  be  the  basis 
of  a  plea.  It  followed  from  this,  that  though  nobody  could  sue 
upon  an  agreement  which  he  had  not  taken  the  precaution  to 
mature  into  a  Contract  by  complying  with  the  proper  forms, 
nevertheless  a  claim  arising  out  of  a  valid  contract  could  be  re- 
butted by  proving  a  counter-agreement  which  had  never  got 
beyond  the  state  of  a  simple  convention.  An  action  for  the 
recovery  of  a  debt  could  be  met  by  showing  a  mere  informal 
agreement  to  w^aive  or  postpone  the  payment. 

The  doctrine  just  stated  indicates  the  hesitation  of  the  Praetors 
in  making  their  advances  towards  the  greatest  of  their  innovations. 
Their  theory  of  Natural  law  must  have  led  them  to  look  with 
especial  favour  on  the  Consensual  Contracts  and  on  those  Pacts 
or  Conventions  of  which  the  Consensual  Contracts  were  only 
particular  instances ;  but  they  did  not  at  once  venture  on  extend- 
ing to  all  Conventions  the  liberty  of  the  Consensual  Contracts. 
They  took  advantage  of  that  special  superintendence  over  pro- 
cedure which  had  been  confided  to  them  since  the  first  beginnings 
of  Roman  law,  and,  while  they  still  declined  to  permit  a  suit  to 
be  launched  which  was  not  based  on  a  formal  contract,  they  gave 
full  play  to  their  new  theory  of  agreement  in  directing  the  ulterior 
stages  of  the  proceeding.  But,  when  they  had  proceeded  thus 
far,  it  was  inevitable  that  they  should  proceed  farther.  The 
revolution  of  the  ancient  law  of  Contract  was  consummated  when 


Chap.  XXVII,  §  2.]      EVOLUTION   OF   THE   LAW   OF   CONTRACT  511 

the  Prsetor  of  some  one  year  announced  in  his  Edict  that  he  would 
grant  equitable  actions  upon  Pacts  which  had  never  been  matured 
at  all  into  Contracts,  provided  only  that  the  Pacts  in  question 
had  been  founded  on  a  consideration  (causa).  Pacts  of  this  sort 
are  always  enforced  under  the  advanced  Roman  jurisprudence. 
The  principle  is  merely  the  principle  of  the  Consensual  Contract 
carried  to  its  proper  consequence ;  and,  in  fact,  if  the  technical 
language  of  the  Romans  had  been  as  plastic  as  their  legal  theories, 
these  Pacts  enforced  by  the  Praetor  would  have  been  styled  new 
Contracts,  new  Consensual  Contracts.  Legal  phraseology  is, 
however,  the  part  of  the  law  which  is  the  last  to  alter,  and  the 
Pacts  equitably  enforced  continued  to  be  designated  simply 
Praetorian  Pacts.  It  will  be  remarked  that  unless  there  were 
consideration  for  the  Pact,  it  would  continue  nude  so  far  as  the 
new  jurisprudence  was  concerned;  in  order  to  give  it  effect,  it 
would  be  necessary  to  convert  it  by  a  stipulation  into  a  Verbal 
Contract. 

The  extreme  importance  of  this  history  of  Contract,  as  a  safe- 
guard against  almost  innumerable  delusions,  must  be  my  justifica- 
tion for  discussing  it  at  so  considerable  a  length.  It  gives  a 
complete  account  of  the  march  of  ideas  from  one  great  landmark 
of  jurisprudence  to  another.  We  begin  with  the  Xexum,  in  which 
a  Contract  and  a  Conveyance  are  blended,  and  in  which  the  for- 
malities which  accompany  the  agreement  are  even  more  important 
than  the  agreement  itself.  From  the  Xexum  Ave  pass  to  the 
Stipulation,  which  is  a  simplified  form  of  the  older  ceremonial. 
The  Literal  Contract  comes  next,  and  here  all  formalities  are 
waived,  if  proof  of  the  agreement  can  be  supplied  from  the  rigid 
observances  of  a  Roman  household.  In  the  Real  Contract  a 
moral  duty  is  for  the  first  time  recognised,  and  persons  who  have 
joined  or  acquiesced  in  the  partial  performance  of  an  engagement 
are  forbidden  to  repudiate  it  on  account  of  defects  in  form.  Lastly, 
the  Consensual  Contracts  emerge,  in  which  the  mental  attitude 
of  the  contractors  is  solely  regarded,  and  external  circumstances  have 
no  title  to  notice  except  as  evidence  of  the  inward  undertaking. 
It  is  of  course  uncertain  how  far  this  progress  of  Roman  ideas 
from  a  gross  to  a  refined  conception  exemplifies  the  necessary 
progress  of  human  thought  on  the  subject  of  Contract.  The 
Contract-law  of  all  other  ancient  societies  but  the  Roman  is 
either  too  scanty  to  furnish  information,  or  else  is  entirely  lost; 
and  modern  jurisprudence  is  so  thoroughly  leavened  with  the 
Roman  notions  that  it  furnishes  us  with  no  contrasts  or  parallels 


512  THINGS  [Part  III. 

from  which  instruction  can  be  gleaned.  From  the  absence, 
however,  of  everything  violent,  marvellous,  or  unintelligible  in 
the  changes  I  have  described,  it  may  be  reasonably  believed  that 
the  history  of  Ancient  Roman  Contracts  is,  up  to  a  certain  point, 
typical  of  the  history  of  this  class  of  legal  conceptions  in  other 
ancient  societies.  But  it  is  only  up  to  a  certain  point  that  the 
progress  of  Roman  law  can  be  taken  to  represent  the  progress  of 
other  systems  of  jurisprudence.  The  theory  of  Natural  law  is 
exclusively  Roman.  The  notion  of  the  vinculum  juris,  so  far  as 
my  knowledge  extends,  is  exclusively  Roman.  The  many  pe- 
culiarities of  the  mature  Roman  Law  of  Contract  and  Delict 
which  are  traceable  to  these  two  ideas,  whether  singly  or  in  com- 
bination, are  therefore  among  the  exclusive  products  of  one  par- 
ticular society.  These  later  legal  conceptions  are  important,  not 
because  they  typify  the  necessary  results  of  advancing  thought 
under  all  conditions,  but  because  they  have  exercised  perfectly 
enormous  influence  on  the  intellectual  diathesis  of  the  modern 
w^orld. 

Section  3 

SPONSIO   AND   PRIMITIVE   CONTRACT  i 

In  the  early  history  of  the  "stipulatio,"  or  rather  of  the  "spon- 
sio,"  one  point  appears  to  be  now  settled,  viz.,  its  religious  nature. 
Its  form,  to  be  sure  —  which  would  have  been  originally  an  oath 
—  is  still  in  dispute.  A  recently  advanced  hypothesis  of  the 
correct  translation  of  "stipulatio" — that  this  early  word  of 
religious  usage  signified  "to  complain  on  oath,"  i.e.  to  challenge 
the  opponent  and  to  make  an  offering  ("stips,"  "stipula,"  some 
small  object)  to  the  deity  ^  —  would  give  to  it  the  same  religious 
character,  involving  plainly  the  "sacramentum,"  the  early  sanc- 
tion for  the  "sponsio." 

But  none  of  the  scholars  (so  far  as  we  are  aware)  has  pursued 
the  inquiry  whether  the  role  of  the  "sponsio"  was  in  primitive 
times  the  same  as  we  find  it  in  the  developed  Roman  law,  viz.  a 
form  for  giving  obligatory  effect  to  all  varieties  of  legal  rela- 
tions by  the  utterance  of  the  simple  words,  "  Spondesne  etc.  ? 
Spondeo."     It  is  conceivable  that  the  "  sponsio  "  was  not  always 

1  [Translated  from  an  essay  bj'  Pol  Collinet,  Professor  of  the  History 
of  French  Law  in  the  University  of  Lille,  and  pulalished  in  the  "Melanges 
Gerardin,"  a  volume  in  honor  of  the  70th  birthday  of  Professor  Gerardin 
(Paris,  1907,  Larose  &  Tenin).  The  translation  is  by  John  H.  Wigmore; 
some  portions  on  the  technique  of  Roman  Law  are  omitted.] 

2  P.  Huvelin,  "Stipulatio,  stips,  et  sacramentum"  (Naples,  1906, 
"Studi  in  onore  di  Carlo  Fadda"). 


Chap.  XXVII,  §3.]      EVOLUTIO:;   OF   THE    LAW   OF   COXTRACT  513 

a  generic  "contract-factory";  and  its  primitive  purpose  is  what 
we  now  propose  to  inquire  into. 

§  1.  Scantiness  of  Contract  Transaction's  in  Primitive  Law.  — 
It  is  difficult  to  believe  that  the  primitive  Italic  peoples  invented 
the  "sponsio"  as  a  general  form  of  validit}'  applicable  to  all 
varieties  of  simple  agreements. 

In  the  first  place,  the  psychology  of  primitive  peoples  makes 
against  this.  Modern  legal  practice  and  theory  is  used  to  this 
method  of  using  legal  ideas.  But  primitive  peoples  do  not  begin 
by  devising  a  general  rule  or  principle  capable  of  application  to 
an  unlimited  or  numerous  variety  of  situations.  Every  legal 
institution  makes  its  first  appearance  in  a  single  aspect  only ;  it 
is  a  species,  not  a  genus.  It  is  like  a  bacillus,  which  enlarges  and 
propagates  itself.  Primitive  men,  like  simple-minded  moderns, 
are  concrete.  Whenever  it  was  that  they  devised  the  broad 
verbal  form  of  the  "sponsio,"  they  did  not  conceive  of  it  as  a 
general  "contract-factory."  Rather  must  we  suppose  that,  when 
aiming  to  validate  some  specific  agreement,  thej^  employed  a 
formula  which  was  concrete  in  their  thought,  though  generic  in 
its  terms.  It  was  reserved  for  their  descendants,  more  advanced 
in  legal  ideas  and  more  addicted  to  generalizations,  to  profit  by 
this  form  of  words. 

In  the  second  place,  the  "sponsio"  could  not  have  been  in- 
vented to  cover  a  group  or  species  of  transactions,  but  only  to 
cover  a  single  kind  of  promise.  We  must  remember  the  rudimen- 
tary conditions  of  the  Italic  civilization  as  it  existed  before  the 
foundation  of  Rome,  and  even  into  the  fifth  and  sixth  centuries 
of  the  Roman  era.  They  did  not  need  a  generic  legal  form  as  a 
cloak  for  numerous  kinds  of  simple  contracts.  We  know  that 
contract-transactions  are  few  in  all  primitive  communities.  And 
in  Italy  there  were  already  enough  forms,  scanty  as  they  were, 
for  the  legal  needs.  They  possessed  the  "nexum"  and  the  "man- 
cipatio,"  —  these  two  reducible  to  the  form  of  "  per  ses  et  libram  "  ; 
this  was  little,  but  it  was  enough.  The  "mancipatio"  was  a  sale 
for  cash.  Primitive  peoples  have  not  reached  the  sale  on  credit ; 
as  they  emerge  from  the  stage  of  barter,  they  devise  the  sale,  but 
for  cash,  —  a  natural  mode  of  transferring  title.  The  archaic 
form  for  this  was  the  transaction  "per  ses  et  libram," — again, 
a  natural  enough  form,  as  soon  as  money  comes  to  be  used,  in  the 
shape  of  ingots,  measured  by  weight  not  by  number.  The  sale 
for  cash,  then,  was  one  of  the  oldest  transactions.  The  money- 
loan,  which  was  perhaps  not  so  old,  was  also  practised  by  the 


514  THIXGS  [Part  III. 

Italiots  with  this  same  form  "per  ses  et  Hbram,"  and  for  the  same 
necessary  reason.  But  these  two  types  of  transaction  sufficed, 
it  would  seem,  for  these  primitive  peoples.  Why?  Because 
most  of  the  known  forms,  real  and  consensual,  of  contract  are  not 
prehistoric,  nor  even  "protohistoric,"  but  are  known  to  be  of  later 
date,  —  at  Rome,  specifically  about  the  seventh  century.  This 
is  true  of  sale  (as  a  contract),  letting,  mandate,  partnership,  de- 
posit, etc.  We  may  go  even  further,  and  say  that,  among  the 
contracts  known  to  primitive  Roman  law,  the  one  that  is  generally 
stated  to  be  earliest,  viz,  the  "nexum,"  cannot  in  our  opinion  be 
regarded  as  a  true  contract  at  all.^ 

In  short,  the  view  here  advanced  is  that  there  was^  in  primitive 
Roman  law,  hut  one  species  of  contract,  viz.  the  " sponsio/' 

The  Italiots  were  not  making  contracts.  Their  family  chiefs 
had  no  commercial  transactions  with  each  other,  except  the  sale 
and  the  money-loan ;  or,  if  there  were  such  transactions,  they  were 
not  recognized  by  any  law;  "fides"  alone  controlled  them.  The 
main  and  sufficient  explanation  of  this  is  the  conditions  of  primitive 
life.  Each  family  within  its  own  circle  satisfied  its  needs  (few 
enough  at  that),  and  such  transactions  within  the  family  were 
not  within  the  purview  of  the  tribal  law,  which  aimed  principally 
at  regulating  the  relations  between  "patresfamilias,"  who  were 
aliens  to  each  other's  family  and  perhaps  to  each  other's  gens. 
The  same  reasons  also  explain  why  (in  our  opinion)  the  "nexum" 
originally  applied  only  to  money-transactions ;  for  though  money 
might  be  had  from  another  member  of  the  same  family,  yet  it 
would  also  often  be  necessary  (especially  when  the  family  was  poor 
or  straitened)  to  resort  to  the  head  of  another  family  to  borrow ; 
whereas  such  resort  would  seldom  be  had  for  borrowing  products 
of  the  soil,  because  one's  own  family  would  be  able  to  supply  them, 
or  if  not,  this  would  be  because  of  bad  harvests,  which  would 
probably  have  affected  other  families  as  well.^ 

1  This  point,  the  precise  nature  of  the  "nexum,"  has  been  much  dis- 
cussed of  late  years ;  but  it  need  not  here  be  examined.  See  Girard, 
"Manuel  elementaire  de  droit  romain,"  4th  ed.,  1906,  p.  480,  n.  2.  In 
our  opinion,  the  "nexum"  is  a  peculiar  transaction  which  has  no  corre- 
sponding one  in  the  developed  law  and  therefore  no  term  that  exactly 
describes  it.  But  that  it  is  not  a  contract,  i.e.  does  not  create  an  obliga- 
tion, in  the  strict  sense,  is  plain.  The  "damnas  esto"  of  the  nexum  does 
not  generate  a  "  dare  oportere  "  ;  and  it  is  not  easy  to  see  how  the  term 
"contract"  can  be  applied  to  a  transaction  for  which  the  procedural  right 
of  action  lacks  the  technical  "oportere."  The  latter  word  is  indispensable 
to  the  idea  of  obligation ;  and  it  appears  for  the  first  time  in  the  "sacra- 
mentum,"  which  is  the  sanction  for  the  " sponsio  "  and  not  for  the  "nexum." 

■  The  large  land-owners,  with  whom  we  later  hear  of  I '  nexi "  being  made, 
did  not  exist  in  the  primitive  period. 


Chap.  XXVII,  §  3.]      EVOLUTION   OF   THE    LAW   OF   CONTRACT  515 

To  sum  up,  the  Italic  community  (as  we  must  conceive  it) 
had  no  need  of  the  "sponsio"  as  a  "contract-factory,"  because 
people  did  not  make  contracts. 

§  2.  The  "Sponsio"  as  originally  made  in  lieu  of  composition 
for  a  feud.  —  There  was,  however  (we  believe),  one  contract ;  and 
it  must  have  been  in  frequent  use.  This  transaction  was  the 
subject  for  the  "sponsio." 

Now  the  sources  themselves  tell  us  nothing  directly  as  to  the 
subject  of  the  "sponsio";  there  is  extant  onh-  one  passage  (as 
also  for  the  "litis  contestatio ")  of  a  grammarian,  —  a  passage 
vague  and  perhaps  mutilated.^  But  it  is  easy  to  construct  an 
hypothesis,  —  solid  enough,  in  that  it  is  merely  a  deduction  from 
the  system  of  ideas  now  indisputably  proved  to  have  characterized 
the  early  history  of  law.     It  is  this : 

The  subject  of  the  "sponsio"  must  have  been  the  promise  to  pay  a 
sum  of  money  representing  the  amount  of  a  composition  due  to  a 
person  for  a  tort  (feud). 

The  situation  was  this :  After  committing  a  tort,  the  wrong- 
doer owed  a  "poena";  the  amount  was  always  fixed,  either  by 
the  tariff  of  the  law,  or  by  a  settlement  with  the  injured  party. 
If  payment  was  made,  well  and  good.  But  suppose  that  the 
wrongdoer  had  no  money?  Was  the  feud  (which  the  settlement 
stopped)  to  recommence  between  the  two  families  ?  Xo  doubt  it 
did,  in  the  earliest  times.  But  as  the  wholesome  effort  for  social 
peace  gained  ground,  in  the  early  communes,  then  the  mediators 
("peace-makers,"  in  the  phrase  of  the  old  French  custumals  of 
the  North)  —  elders,  or  priests,  or  soothsayers,  or  kings  —  would 
naturally  seek  a  means  of  restraining  that  mutual  destruction 
which  would  shed  the  blood  and  deplete  the  strength  of  their 
citizens.  And  the  guilty  party  himself  would  naturally  wish  for 
a  truce  (like  that  of  the  "communes  jurees''  in  the  Middle  Ages) 
until  he  could  procure  the  money  needed.  At  this  point,  would 
he  not  make  a  promise,  when  asked  by  the  injured  person  or  his 
chief  of  family  ?     "  Spondesne  mihi  centum  dare  ?  "     "Spondeo." 

And  here  we  would  have  the  "  sponsio,"  the  earliest  true  contract, 
and  the  only  primitive  one,  —  the  promise  to  pay  the  pecuniary 
composition  to  stop  a  feud. 

This  simple  idea  readily  explains  (in  our  view)  several  features : 

1.  In  the  first  place,  the  relation  between  the  "sponsio"  and  the 
other  two  earliest  transactions  of  Roman  law  —  the  "nexum" 

1  See  my  article  on  "The  Original  Nature  of  the  Litis  Contestatio'* 
("Nouv.  revue  hist,  de  droit  fr.  et  etr.,"  1902,  XXVI,  529). 


516  THINGS  [Part  III. 

and  the  '*  mancipatio "  —  is  now  easy  to  detect.  The  wrongdoer 
who  is  to  pay  cannot  obtain  the  money  (from  others  than  his  own 
family)  except  by  one  of  two  means,  viz.  by  selling  some  property 
of  his  own  and  paying  his  liability  with  the  price  received  —  in 
which  case  he  will  use  the  "mancipatio"  :  or,  by  borrowing  the 
sum  needed,  —  in  which  case  he  must  use  the  "  nexum."  We  may 
even  venture  further,  and  assert  that  these  two  transactions  would 
in  general  be  needed  only  when  it  was  a  tort  for  which  the  family- 
chief  needed  this  money.  For  what  other  purposes  could  the 
money  be  needed?  In  primitive  times,  the  other  occasions  for 
such  expense  are  limited ;  agriculture  calls  for  no  investment  of 
capital.  The  need  of  money  in  those  primitive  communities  is 
exceptional. 

2.  The  province  of  the  Roman  "  cautio,"  or  suretyship  contract, 
was  at  the  beginning  no  more  specific,  in  our  opinion,  than  that  of 
the  "stipulatio."  The  two  contracts  bore  the  same  name,  "spon- 
sio."  ^  It  seems  to  us  clear  that  the  primitive  surety-contract 
served  solely  to  guarantee  the  promise  of  a  wrongdoer  liable  for 
a  composition.  What  other  purpose  it  could  serve  is  not  apparent. 
Not  that  of  a  sale ;  for  at  Rome  the  price  of  a  sale,  primitively, 
was  paid  in  cash.  Not  that  of  a  "nexum" ;  for  the  "cautio"  by 
its  very  definition  was  accessory  to  some  other  obligation,  and  the 
borrower  in  the  "nexum"  incurred  no  obligation,  in  the  techni- 
cal sense;  moreover,  the  consequences  of  the  "nexum"  were  posi- 
tive enough  not  to  need  a  surety.  Looking  at  facts,  we  must 
conclude  that,  at  Rome  as  elsewhere,  the  situation  of  the  wrong- 
doer called  for  some  mode  of  insuring  payment  to  the  victim ; 
and  to  take  a  third  person  as  surety  was  the  natural  expedient. 
Family  solidarity  placed  upon  the  relatives  the  burden  of  taking 
up  the  feud  either  as  attackers  or  defenders ;  what  more  natural 
than  to  bring  about  a  peace,  by  either  helping  to  pay  the  required 
sum  or  by  joining  in  the  promise  to  pay  it? 

3.  Furthermore,  our  hypothesis  serves  to  explain  how  the  prim- 
itive subject  of  the  "sponsio"  and  of  its  remedial  action  the 
"legis  actio  per  sacramentum"  (leading  to  the  "legis  actio  per 
manus  injectionem"),  was  a  sum  of  money. ^    This  "legis  actio" 

lit  would  not  be  impossible  that  the  "sponsio"  was  employed  at 
first,  as  a  species  of  "cautio,"  to  furnish  a  third  person's  guarantee  of  the 
obligation  of  a  wrongdoer,  and  as  a  well-defined  instance  of  family  soli- 
darity, without  having  the  wrongdoer  himself  enter  into  a  "  stipulatio. " 
[Compare  here  the  Germanic  use  of  the"wadia"  =  promise,  noted  supra, 
Chap.  XXV.,  §  2,  p.  458,  note  1.] 

2  This  fact  is  proved  for  the  "manus  iniectio,"  and  probably  also  for 
the  "sacramentum." 


Chap.  XXVII,  §  3.]      EVOLUTION   OF   THE    L.\W   OF   CONTRACT  517 

developed,  in  historic  times,  an  application  to  a  "certa  res" ;  but 
in  its  origin  it  probably  applied  only  to  a  money-claim,  i.e.  the 
amount  of  the  "poena"  required  to  settle  for  a  wrong.  The  later 
change  would  be  explainable  by  the  corresponding  enlargement 
in  the  province  of  the  "stipulatio." 

4.  Finally,  the  innominate  (generic)  feature  of  the  "sponsio" 
formula,  as  developed  in  later  times  (like  that  of  the  "  sacramen- 
tum"  and  also  of  the  "condictio"),  would  be  perfectly  compatible 
with  its  primitive  role.  For  the  "sponsio"  formula,  "mihi  cen- 
tum dare"  etc.,  mentioned  no  "causa,"  or  purpose,  of  the  obli- 
gation, for  the  simple  reason  that  this  was  needless ;  there  was 
but  one  normal  "causa,"  the  purpose  of  settling  the  composition 
for  a  feud.^  ... 

§  3.  Conclusion.  —  Our  hypothesis,  then,  though  not  as  firm 
as  though  it  could  be  rested  on  specific  texts,  is  nevertheless 
plausible  enough.  For  it  squares  with  the  conceded  features  of 
primitive  law  and  the  important  part  played  by  the  family  feud 
and  the  composition.  It  satisfies  our  natural  curiosity  to  com- 
plete the  situation.  The  researches  of  those  scholars  who  have 
sought  to  discover  the  origins  of  the  Roman  law  of  obligations, 
from  the  point  of  view  of  comparative  archaic  law,  have  neglected 
to  trace  into  all  its  consequences  this  casfe  where  the  wrongdoer 
or  his  family  does  not  pay  on  the  spot  the  composition  demanded 
by  the  victim.  These  authors  had  in  their  mind's  eye  only  the 
legal  proceeding  as  replacing  the  private  feud,  and  the  primitive 
mode  of  enforcement  by  "  manus  injectio."  The  other  alternative 
they  did  not  work  out,  viz.  the  primitive  contractual  alternative, 
in  which  the  wrongdoer  promises  to  pay,  if  the  victim  is  willing. 
This  truce  would  suspend  the  legal  proceeding.  If  this  question 
had  been  raised,  those  authors  could  not  have  failed  to  reply  that 
the  recourse  here  would  have  been  to  the  "stipulatio";  for  by 
their  assumption  it  was  from  the  very  first  a  "contract-factory." 
We  have  here  tried  to  show  that  the  "sponsio"  had  originally  no 
other  purpose  than  to  embody  this  specific  kind  of  contract.  And 
this  theory  serves  to  complete  our  understanding  of  the  primitive 
Roman  system  of  composition  for  wrongs. 

^  [The  author  here  enlarges  on  certain  details  of  Roman  law  theory  and 
later  history,  as  being  not  inconsistent  with  this  hypothesis  of  the  origin 
of  the  "sponsio."  The  extension  of  usage  to  a  generic  form  he  places  at 
about  the  5th  or  6th  century  of  Rome.] 


Chapter  XXVIII 
SALES   AND   LOANS   AT  ROME^ 

1.    The  Tivelve  Tables 

The  characteristics  of  early  Roman  law,  as  we  find  it,  or  sup- 
pose it  to  have  existed,  in  the  Twelve  Tables,  are  formalism  and 
rigidity. 

All  private  dealings  between  man  and  man  are,  at  this  time, 
governed  by  two  juristic  acts  :   (1)  'mancipatio' ;   (2)  'nexum.' 

L  Mancipatio. 

Mancipatio  is  the  solemn  sale  of  early  Roman  law.  In  the 
presence  of  five  witnesses  (cives  Romani  puberes)  a  skilled  weigh- 
master  (libripens)  weighs  out  to  the  vendor  a  certain  amount  of 
uncoined  copper  (aes,  r-audus,  raudusculum)  which  is  the  purchase- 
money,  and  the  purchaser,  with  solemn  words,  takes  possession  of 
the  thing  purchased  as  being  his  property. 

Before  the  Twelve  Tables,  when  there  was  as  yet  no  coined 
money,  the  weighing  out  of  the  aes  by  the  libripens  constituted  or, 
at  any  rate,  might  constitute  the  actual  payment  of  the  purchase- 
money.  Mancipatio  was  not  an  'imaginaria  venditio,'  but  a 
genuine  sale.  But  the  decemviri  introduced  coined  money  into 
Rome.  The  first  coin  used  was  the  copper  '  as,'  the  silver  denarius 
not  being  introduced  till  269  B.C.  These  changes,  however,  did  not 
affect  the  formalism  of  mancipatio.  The  libripens  and  the  weigh- 
ing still  remained,  in  spite  of  the  fact  that  the  weighing  out  of  un- 
coined aes  had  ceased  to  constitute  payment.  For  the  payment 
implied  in  the  ceremonial  of  mancipatio  was  now  a  purely  fictitious 
one,  and  the  actual  payment  was  a  matter  quite  independent  of  the 
mancipatio.  Hence  the  enactment  of  the  Twelve  Tables  that  no 
mancipatio  should  be  legally  operative  unless  the  price  were  actu- 
ally paid  or,  at  least,  security  given  for  it.  Thus  mancipatio  con- 
tinued to  be  a  real  sale,  and  on  principle  it  was  a  sale  for  ready 

^  [By  Rudolph  Sohm.  Reprinted  by  permission  from  "The  Institutes 
of  Roman  Law"  (Ledlie's  trans.),  Oxford  University  Press,  1392.] 

518 


Chap.  XXVIII.]  SALES    AND    LOANS   AT   ROME  519 

money,  a  narrowly  circumscribed  transaction  clothed  in  rigid 
formalities  and  only  available  for  a  single  economic  purpose. 
The  mancipatory  sale  was  the  only  valid  form  of  sale  which  was 
known,  and  was  thus  at  the  same  time  the  only  private  legal  trans- 
action by  which,  at  this  stage  of  the  jus  civile,  property  could  be 
conveyed.  Xo  alienation  of  property,  therefore,  was  legally  valid 
unless  it  satisfied  the  following  conditions  :  it  must  be  for  valuable 
consideration ;  it  must  be  done  in  the  presence  of  five  witnesses 
and  the  libripens ;  the  thing  to  be  alienated  must  be  before  the 
parties,  and  only  so  many  things  can  be  alienated  in  any  one 
transaction  as  the  purchaser  can  take  hold  of  (manu  capere)  at 
one  and  the  same  time.  Thus  if  more  things  are  to  be  mancipated 
than  the  alienee  can  take  hold  of  at  once,  the  whole  ceremony  of 
mancipatio  must  be  repeated  anew  each  time.^  Such  was  as  yet 
the  clumsy  and  backward  condition  of  the  law  which  governed  the 
ordinary  dealings  between  man  and  man. 

2.  Nexum. 

Next  to  mancipatio  we  have,  in  the  second  place,  the  'nexum,' 
or  solemn  loan.  In  the  presence  of  five  witnesses  the  libripens 
weighs  out  to  the  borrower  the  corresponding  amount  of  raw  metal, 
and  the  lender  at  the  same  time  declares  in  solemn  words  that  the 
borrower  is  now  in  his  debt  (dare  damnas  esto) .  The  borrower  is 
now  under  an  obligation  to  repay.  He  is  said  to  be  'nexus '  to  his 
creditor,  i.e.  he  has  directly  pledged  his  own  person  for  repasment 
of  the  loan,  and  thus  stands  already  in  precisely  the  same  position 
as  a  judgment  debtor.  Here,  again,  the  effect  of  the  introduction 
of  coined  money  is  that  the  loan,  as  executed  in  the  nexum  itself,  is 
a  mere  form,  the  actual  loan  being  an  independent  matter.  Never- 
theless, as  in  the  case  of  mancipatio,  so  here,  the  material  character 
of  nexum  as  a  transaction  subserving  one  definite  purpose  only,  re- 
mains intact.  For  nexum  cannot  be  employed  to  create  any  kind 
of  debt,  but  solely  a  debt  based  on  a  loan.^  Thus  we  see  that  the 
law  of  contract,  too,  is  narrow  and  meagre,  like  the  whole  life  of  this 
early  period. 

'  It  appears  from  a  document  recently  discovered  in  Pompeii  that  even 
in  the  first  century  of  our  era  it  was  necessary,  in  mancipating  several 
slaves,  to  repeat  the  whole  mancipatio  ceremony  specially  for  each  sepa- 
rate slave.    Cp.  Eck,  vol.  1,  p.  87  (Romanist.  Abt.)  of  the  "  ZS.  der  Sav.  St." 

-  This  follows  from  the  legal  rules  about  nexi  liberatio.  It  appears, 
therefore,  that  in  nexum  as  well  as  in  mancipatio  the  material  character 
of  the  transaction  must  have  been  brought  out  in  the  ceremonial  in  some 
way  or  other,  so  that  just  as  the  purchaser  did  not  acquire  ownership  by 
the  bare  form  of  mancipatio  alone,  so  here  the  debtor  did  not  incur  an  obli- 
gation by  the  bare  form  of  the  nexum  alone. 


520  THINGS  [Part  III. 

We  have  stated  that  mancipatio  is  a  ready  money  transaction. 
It  does  not,  as  such,  bind  the  purchaser  to  pay  the  price,  but  only 
makes  such  payment  a  condition  precedent  to  the  passing  of  owner- 
ship. Nexum,  on  the  other  hand,  is  a  transaction  on  credit.  Its 
effect  is  to  place  the  borrower  under  an  obligation  to  repay.  If  he 
fails,  the  debt  will  be  followed  by  execution. 

Execution  proceeds  directly  with  inexorable  rigour  against  the 
person  of  the  debtor.  He  falls  into  the  power  of  his  creditor,  who 
may  bind  him  and  cast  him  into  chains.  After  having  thrice 
publicly  invited  some  one  to  come  forward  and  release  him,  the 
creditor  may  —  in  default  of  any  one  appearing,  and  after  the 
lapse  of  sixty  days  —  regard  the  debtor  as  his  slave,  and  may 
either  kill  him  or  sell  him  'trans  Tiberim,'  i.e.  into  a  foreign  coun- 
try, say,  Etruria.  If  several  creditors  have  claims  upon  one  and 
the  same  debtor,  the  law  allows  them  to  cut  the  debtor  into  pieces, 
and  provides  that  a  mistake  in  the  division  shall  in  no  wise  pre- 
judice their  rights. 

The  rigour  of  the  private  law  finds  its  counterpart  in  the  rigour  of 
the  family  power.  Within  his  family  the  paterfamilias  is  an  abso- 
lute sovereign  ;  he  has  power  over  the  life  and  liberty  of  any  mem- 
ber of  the  household.  The  only  external  checks  on  the  exercise  of 
his  legal  rights  are  furnished,  not  by  the  law,  but  by  religion  and 
custom. 

2.     The  Interpretatio 

The  Twelve  Tables  had  exhibited  early  Roman  law  in  a  form 
corresponding  to  its  tendency,  the  form,  namely,  of  a  popular 
statute. 

In  the  original  stages  of  its  development  the  law  of  Rome,  like 
that  of  other  nations,  was  of  the  nature  of  customary  law.  The 
Romans,  however,  looked  upon  customary  law  as  an  inferior  kind 
of  law.  Their  innate  sense  of  form  could  not  rest  satisfied  with 
a  species  of  law  which  is  comparatively  intangible,  formless,  and 
difficult  of  proof.  True,  there  were  some  rules  of  customary  origin 
which  possessed  the  full  force  of  law  (legis  vicem),  rules  resting  on 
immemorial  usage  which  the  legal  habits  of  the  nation  had  gradu- 
ally shaped  into  precision.  But,  generally  speaking,  it  was  held 
that  the  magistrate  in  administering  justice  was  not  absolutely 
bound  by  rules  of  mere  customary  law,  and  that  in  dealing  with 
such  rules  he  was  justified,  within  certain  limits,  in  exercising  his 
free  discretion.  But  a  Lex  (publica),  i.e.  a  rule  of  law  which 
magistrate  and  people  had  agreed  upon  by  means  of  a  solemn  dec- 


I 


Chap.  XXVIII.]  SALES   AND   LOANS   AT   ROME  521 

laration  of  consensus,  was  a  different  matter.^  The  authority  of  a 
lex  was  irrefragably  binding  on  the  magistrate. 

In  the  Twelve  Tables,  Roman  law  had,  to  a  considerable  extent, 
received  the  form  of  a  lex.^  It  is  to  this  fact  that  the  success  and 
popularity  of  the  decemviral  legislation  is  due.  So  far  as  it  was 
codified,  at  any  rate,  the  law  was  now  secure  from  the  arbitrary 
powers  of  the  magistrate  who  administered  it. 

The  decemviral  legislation  being  accomplished,  the  energies  of 
the  three  succeeding  centuries  were  concentrated  in  the  task  of 
thoroughly  working  out  its  contents.  During  the  Republic, 
changes  by  statute,  in  matters  of  private  law,  were  exceptional, 
and  the  function  of  interpreting  and,  at  the  same  time,  developing 
the  laws  of  the  Twelve  Tables  was  left,  in  the  main,  to  the  operation 
of  the  existing  legal  agencies.  The  period  of  legislation  was  fol- 
lowed by  the  period  of  interpretation. 

The  exigencies  of  commerce  demanded  new  regulations.  How  to 
represent  these  new  regulations  as  virtually  contained  in,  and 
covered  by  the  statutory  force  of,  the  law  of  the  Twelve  Tables,  was 
thus  the  problem  to  be  solved.  The  notion  of  formally  superseding 
the  law.  of  the  Twelve  Tables,  which  was  statutory,  b}^  conflicting 
rules  of  law.  which  were  merely  customary,  would,  at  that  time, 
have  appeared    well-nigh    inconceivable    to    the    Romans.      For 

1  Lex  (Icelandic :  lag,  log ;  Frisian :  laga,  lag,  log ;  Anglo-Saxon : 
lagu,  lah ;  Saxon :  lach ;  English  :  law)  means  literally  that  which  is 
'laid'  or  'fixed,'  in  other  words,  'a  statute.'  In  the  language  of  the 
Romans  lex  means  anything  which  is  'laid  down'  or  'settled,'  and  which, 
being  proposed  in  a  certain  form  by  one  party,  is  accepted  by  the  other 
(e.g.  the  '  lex  eommissoria ') .  A  '  lex  publiea,'  then,  is  a  covenant,  or  statute, 
proposed  by  the  magistrate  and  accepted  by  the  people,  which  binds  the 
community  in  \artue  of  this  reciprocal  declaration.  Cp.  Mommsen, 
"Rom.  Staat.srecht,"  vol.  3,  pp.  303,  309;  A.  Pcrnice,  "Formelle  Gesetze 
in  Romischen  Recht"  (Festgabe  fiir  Gneist),  1888. 

2  Some  isolated  laws  were  made  as  early  as  the  regal  period.  Servius 
TuUius,  for  instance,  is  credited  with  some  laws  on  contracts  and  delicts. 
The  'leges  regiae,'  however,  which  were  collected  in  the  so-called  'jus 
civile  Papirianum'  (probably  a  private  compilation  dating  from  the  close 
of  the  Republic),  owe  their  name,  in  all  probability,  merely  to  the  fact  that 
the  regulations  they  contain  were  placed  imder  the  immediate  protection 
of  the  kings  (in  precisely  the  same  way  as  the  name  of  'royal  laws'  was 
applied  to  early  Attic  regulations  of  ceremonial  ritual,  merely  because 
their  administration  was  the  official  duty  of  the  Archon  Basileus ;  v. 
R.  Scholl,  pp.  88,  89  of  the  "  Sitzxmgsberichte  der  Bayerischen  Akademie 
d.  Wissenschaft,"  1886).  These  'leges  regiae'  are  concerned,  in  the  main, 
with  'sacred'  matters,  i.e.  they  are  essentially  of  a  religious  and  moral 
character,  and  bear  clear  testimony  to  the  closeness  of  the  original  connec- 
tion between  law  and  religion.  It  is  probable  that,  in  substance,  the  ma- 
jority of  them  actually  date  back  to  the  time  of  the  Kings.  Brun.'i, 
"Fontes,"  p.  1  ff. ;  Mnmmncn.  "Rom.  Staatsrecht."  vol.  2  (3d  ed.), 
p.  41  ff.  ;  Karlnrcn,  "Rom.  R.  G.,"  vol.  1  (1885).  p.  106;  Vofat.  "Die 
leges  regiae"  (1876)  ;  P.  Kriiger,  "G.  der  Quellen  u.  Literatur  des  Rom.R." 
(1888),  pp.  4-8;   Jors,  "Rom.  RW."  (1888),  p.  59  fif. 


522  THINGS  [Part  III. 

throughout  the  long  period  of  one  thousand  years,  extending  down 
to  the  final  stage  in  the  development  of  Roman  law,  i.e.  down 
to  the  Corpus  juris  civilis  of  Justinian,  the  legal  force  of  the  Twelve 
Tables,  as  the  source  of  all  Roman  law,  was  all  along  regarded  as 
remaining,  in  theory,  unimpaired,  in  spite  of  the  fact  that,  when  the 
end  came,  there  was  not  a  stone  in  the  entire  structure  of  the  de- 
cemviral  laws  but  had  long  been  displaced  from  its  original  position. 
And  this  was  quite  in  keeping  with  the  conservatism  of  the  Romans 
and  the  extreme  caution  with  which  they  proceeded  in  all  matters 
of  law.  Not  one  letter  of  the  Twelve  Tables  was  to  be  altered,  and 
yet  the  new  spirit  was  to  be  infused  into  the  old  letter.  The 
decemviral  legislation  being  complete,  the  time  had  arrived  for  an 
'  interpretatio '  which  should  develop  and  even  alter  the  law,  but 
should,  at  the  same  time,  leave  the  letter  of  the  law  intact. 

The  period  of  interpretation  covers  the  later  centuries  of  the 
Republic.  At  the  outset  the  work  of  interpreting  the  law,  i.e.  of 
carrying  on,  in  its  initial  stage,  the  development  of  the  jus  civile, 
was  performed  by  the  pontiffs.  It  was  regarded  as  the  special  pro- 
fessional duty  of  the  pontiffs  to  preserve  the  knowledge  of  the  laws 
of  the  Kings.  In  consequence  more  particularly  of  the  knowledge 
they  thus  possessed  and  also  of  their  general  scientific  learning,  it 
became  their  office  to  assist  with  legal  advice  not  only  magistrates 
in  regard  to  the  exercise  of  the  jurisdiction  vested  in  them,  but  also 
private  parties  in  regard  to  the  steps  to  be  taken  in  concluding  con- 
tracts and  carrying  on  lawsuits.  Thus  it  happened  that  the  busi- 
ness of  interpreting  the  subsisting  law,  and  thereby  developing 
the  civil  law,  fell  under  the  control  of  the  pontiffs. 

It  was  by  means  of  such  interpretation  that  the  so-called  '  In 
Jure  Cessio '  was  now  developed.  In  jure  cessio  was  a  new  way  of 
conferring  a  legal  title  by  means  of  a  fictitious  lawsuit  before  the 
magistrate.  The  beginnings  of  in  jure  cessio  probably  date  back  to 
a  time  anterior  to  the  laws  of  the  Twelve  Tables,  but  its  full  de- 
velopment belongs  to  a  period  subsequent  to  these  laws.  The 
Twelve  Tables  provided  that  whenever  one  party  to  an  action,  at 
the  suit  of  the  other,  at  once  admitted  his  opponent's  title  in  person 
before  the  magistrate  ('in  jure'),  no  judgment  should  be  required, 
and  the  party  confessing  should  be  regarded  as  already  condemned 
(confessus  pro  judicato  est).  The  confession  before  the  magistrate 
had  the  force  of  a  judgment.  Thus,  in  a  suit  about  ownership,  the 
magistrate  could  at  once  proceed  to  award  the  thing  to  the  plaintiff 
(the  'addictio').  In  other  words,  if  a  person  confessed  before  the 
magistrate  that  his  opponent  in  the  action  was  the  owner,  he  was 


Chap.  XXVIII.]  SALES   AND    LOANS   AT   HOME  523 

divested  of  his  ownership,  -if  at  the  moment  of  the  confessio  he  was 
still  owner.  This  suggested  a  general  method  for  transferring 
ownership.  If  A  desired,  on  any  legal  ground  whatever,  to  transfer 
his  ownership  in  a  thing  to  B,  A  and  B  would  go  before  the  magis- 
trate, B  (the  intended  transferee)  would  claim  ownership,  A  (the 
intended  transferor)  would  admit  his  title,  and  the  magistrate 
would  then  pronounce  his  award  (addictio)  in  favour  of  the  trans- 
feree. Thus  the  transferor  was  divested  of  his  ownership  and  the 
transferee  was  invested  with  it.  A  rule  of  procedure  (confessus 
pro  judicato  est)  had  been  utilized  for  developing  a  new  kind  of 
private  juristic  act,  the  act  of  transferring  ownership  by  means  of  a 
fictitious  vindicatio  (in  jure  cessio),  and  one  the  validity  of  which 
could  be  represented  as  resting  on  the  Twelve  Tables.  The  same 
process  could  be  utilized  for  the  purpose  of  establishing  patria 
potestas  and  effecting  the  manumission  of  a  slave  by  means  of  a 
fictitious  vindicatio  *in  patriam  potestatem'  and  'in  libertatem' 
respectively.  Thus  in  jure  cessio  became  the  medium  through 
which  a  whole  host  of  new  juristic  acts  were  introduced  into  the 
working  system  of  Roman  law. 

Another  juristic  act  was  developed  in  a  similar  manner  by 
utilizing  a  penal  provision  of  the  Twelve  Tables.  This  was  the 
'emancipation'  of  the  filiusfamilias.  The  Twelve  Tables  enacted 
that,  if  a  father  sold  his  son  thrice  into  bondage,  he  should  suflFer 
the  penalty  of  forfeiting  his  patria  potestas. 

The  '  interpretatio '  utilized  this  rule.  The  father  might  sell  his 
son,  by  a  purely  imaginary  sale,  thrice  repeated,  into  the  bondage 
of  another  who  would  manumit  the  son  after  each  sale  by  means  of 
in  jure  cessio.  The  effect  of  this  transaction  was  the  'emancipa- 
tion '  of  the  filiusfamilias,  i.e.  he  was  discharged  from  the  paternal 
power ;  for  the  conditions  required  by  the  Twelve  Tables  had  been 
complied  with.  The  father  had  thrice  sold  his  son  into  bondage, 
consequently  the  son  was  now  free  from  the  paternal  power.  A 
different  adaptation  of  the  same  penal  rule  led  to  the  development 
of  the  'datio  in  adoptionem.' 

Of  all  the  changes  the  most  important  was  the  transformation 
which  mancipatio  underwent  in  the  course  of  the  century  subse- 
quent to  the  Twelve  Tables.  The  Twelve  Tables  enacted  :  XII 
Tab.  ^T.  I :  Cum  nexum  faciet  mancipiumque,  uti  lingua  nun- 
cupassit,  ita  jus  esto. 

That  is  to  say,  the  formal  juristic  act  was  to  operate  in  the 
manner  defined  by  the  solemn  oral  declaration  (nuncupatio). 
Utilizing   this   rule,   the   interpretation   changed   the   nature   of 


524  .  THINGS  [Part  III. 

mancipatio.  It  was  tlie  intention  of  the  Twehe  Tables  that 
mancipatio  should  be  a  genuine  sale,  and  it  was  essential  for  its 
validity  that  the  purchase-money,  as  specified  in  the  mancipatio, 
should  be  actually  paid  down.  But  there  was  nothing  to  prevent 
the  parties  from  naming  in  the  ceremony  of  mancipatio,  not  the 
real  price,  but  a  fictitious  one,  and  the  payment  of  this  price  would 
suffice  to  call  into  play  the  operation  of  mancipatio  as  a  legal 
conveyance,  and  thus,  at  the  same  time,  to  evade  the  rule  as  to  the 
necessity  of  paying  the  price.  And  this  is  what  actually  happened 
at  a  later  stage.  The  outcome  of  this  device  was  the  so-called 
'mancipatio  sestertio  nummo  uno.'  In  the  mancipatio  a  declara- 
tion was  made  that  the  thing  was  being  sold  for  'one  sesterce,'  and, 
the  alienee  having  paid  his  sesterce,  ownership  passed  to  him  in 
virtue  of  the  Twelve  Tables.  So  far  then  as  mancipatio  took  the 
form  of  a  'mancipatio  sestertio  nummo  uno,'  it  had  passed  from  a 
genuine  to  a  purely  fictitious  sale  (imaginaria  venditio). 

The  result  was  that  mancipatio  developed  into  a  general  mode  of 
conveying  ownership  as  such,  quite  irrespective  of  the  legal  ground 
on  which  such  conveyance  took  effect.  It  could  now  be  employed 
for  a  variety  of  purposes.  It  was,  for  instance,  available  for  the 
purpose  of  making  a  gift.  But  there  was  another  and  a  more 
important  use  to  which  it  could  be  turned :  the  so-called  '  manci- 
patio fiduciae  causa '  had  now  become  practicable.  This  manci- 
patio fiduciae  causa,  or,  briefl}',  'fiducia,'  was  a  qualified  mancipatio 
which  imposed  a  duty  on  the  transferee,  and  it  was  a  transaction, 
the  nature  of  which  rendered  it  conveniently  available  for  economic 
purposes  of  the  most  multifarious  kinds.  Thus  the  change  from 
the  old  mancipatio  to  the  new  was  the  change  from  a  transaction 
narrow  in  character  and  circumscribed  in  application,  to  one  free 
from  inward  restrictions  and  capable  of  adaptation  to  an  indefinite 
variety  of  uses. 

'  Fiducia '  is  an  agreement  of  trust,  whereby  the  transferee  in  a 
mancipatio  undertakes , to  divest  himself  of  the  ownership  which  has 
been  conveyed  to  him,  and  more  especially  —  in  certain  circum- 
stances —  to  remancipate  the  thing  he  has  received. 

Suppose,  for  instance,  that  a  debtor  desired  to  give  his  creditor  a 
pledge.  A  transaction  by  which  a  person  made  his  property  simply 
liable  for  an  existing  debt,  in  our  sense  (a  'hypothec'),  was  unknown 
to  early  Roman  law.  But  mancipatio  in  its  new  shape  would  meet 
the  necessities  of  the  case.  The  debtor  mancipated  the  thing  to 
the  creditor  'for  one  sesterce,'  and  thus  constituted  him  owner  by 
means  of  an  imaginary  sale.     But  the  creditor  held  the  legal  owner- 


Chap.  XXVIII. 1  SALES   AND    LOANS   AT   ROME  525 

ship  subject  to  a  'trust'  (fidei  or  fiduciae  causa),  and  the  fiducia 
was  to  the  effect  that  on  payment  of  the  debt  the  creditor  should 
reconvey  ( '  remancipate ')  the  thing  to  the  debtor.  The  creditor 
thus  got  his  security,  and  meanwhile  he  was  the  owner  of  the  thing 
pledged.  But  as  soon  as  the  debtor  discharged  the  debt,  the  fiducia 
or  trust-clause  gave  him  a  right  to  claim  the  thing  back  again. 
Other  agreements  could  be  concluded  in  the  same  way.  In  the  case 
of  the  pledge  just  described  there  was  a  'fiducia  cum  creditore  con- 
tracta.'  In  precisely  the  same  manner  the  so-called  'fiducia  cum 
amico  contracta'  could  be  used  for  the  purpose  of  effecting  a  de- 
positum,  commodatum,  or  mandatum  in  accordance  with  the  forms 
of  the  civil  law.  Thus,  whether  the  thing  were  delivered  for  safe 
custody — as  in  the  case  of  depositum  —  or  for  specific  use,  as  in  the 
case  of  commodatum ;  or,  again,  were  delivered  on  terms  that  the 
transferee  should,  for  instance,  sell  it,  or  give  it  to  a  third  party,  or 
(if  the  object  were  a  slave)  should  manumit  such  slave  —  as  in  the 
case  of  mandatum  —  in  all  such  cases  the  transferor  (deponens, 
commodans,  mandans)  made  the  transferee  (depositarius,  commo- 
datarius,  mandatarius)  formally  owner  of  the  thing  delivered,  but 
the  ownership  was  held  subject  to  a  trust,  'fiduciae  causa' ;  it  was 
purely  formal,  and  involved  an  obligation  to  abide  by  the  terms  of 
the  agreement  on  which  the  mancipatio  was  based. 

There  was  no  reason  why  the  agreement  that  ownership  should 
pass  subject  to  a  trust,  should  not  be  set  forth  in  the  formula  used 
in  the  mancipatio  (the  'nuncupatio ').  The  existence  of  a  fiduciary 
duty  was  thus  clearly  established  by  the  solemn  act  itself,  but  to 
embody  the  entire  agreement  in  the  nuncupatory  formula  was 
scarcely  feasible.  The  mancipatio  itself,  therefore,  said  nothing 
about  the  terms  of  the  trust ;  for  these  it  was  necessary  to  look  to 
the  'pactum  conventum,'  a  formless  collateral  agreement.  But, 
according  to  early  Roman  law,  no  action  can  be  taken  on  a  formless 
pact.  Is  then,  a  'pactum  fiduciae' actionable  or  not?  The  early 
jurists  argued  this  way.  Inasmuch  as  the.pactum  conventum  as 
such  is  not  actionable,  that  which  is  promised  in  the  pactum  cannot, 
as  such,  be  enforced  by  an  action.  But  the  duty  to  deal  with  the 
object  'in  good  faith'  is  actionable.  Having  been  clearly  set  forth 
in  the  solemn  mancipatio  this  duty  falls,  of  course,  under  the  pro- 
tection afforded  by  the  rule  of  the  Twelve  Tables  :  'uti  lingua  nuncu- 
passit,  ita  jus  esto.'  The  transferee  thus  became  liable  to  an  'actio 
fiduciae.'  It  is  important  to  observe  what  it  was  precisely  that  the 
plaintiff"  in  this  action  could  require  the  defendant  {i.e.  the  trans- 
feree in  the  mancipatio)  to  do.     He  could  not  call  upon  him  to  do 


526  THINGS  [Part  III. 

what  he  had  promised  In  the  pact,  because  the  pact  had  not  been 
'nuncupated.'  But  he  could  call  upon  him  to  do  that  which  any 
honourable  and  trustworthy  man  could  be  reasonably  expected  to 
do  having  regard  to  the  circumstances  of  the  case,  the  most  im- 
portant of  which  was,  of  course,  the  pactum  conventum  itself.  In 
other  words,  what  the  judge  had  to  find  out  was  7iot  whether  the 
defendant  had  acted  up  to  the  precise  terms  of  the  pact  —  for  the 
pact  being  formless,  its  terms  were  still  cjuite  unenforceable  — but 
whether  the  defendant  had  conducted  himself  in  such  a  way,  '  ut 
inter  bonos  bene  agier  oportet  et  sine  fraudatione.'  Since  the 
pactum  conventum  lay  outside  the  solemn  mancipatio,  the  fiducia 
did  not  give  rise  to  an  actio  stricti  juris,  but  to  a  so-called  'actio 
bonae  fidei,'  i.e.  the  extent  of  the  obligation  which  it  produced 
was  not  fixed  b}"  any  hard  and  fast  line,  but  rather  by  the  judge 
exercising,  within  fairly  wide  limits,  his  free  judicial  discretion. 
In  fiducia  we  have  the  first  recognized  instance  of  a  contract 
different  in  kind  from  the  legal  transactions  which  had  been  handed 
down  from  olden  times.  For  the  extent  of  the  obligation  en- 
gendered by  these  transactions  was  rigorously  determined  by  the 
letter  of  the  agreement ;  in  fiducia,  on  the  other  hand,  it  was  equi- 
tably determined  in  accordance  with  the  free  discretion  of  a  *  bonus 
vir,'  taking  into  account  all  the  circumstances  of  the  case.  It  was  a 
contract  which  placed  the  existence  of  a  liability  beyond  all  doubt, 
but  which  was  neither  designed  nor  able  to  fix,  in  set  terms,  its 
precise  contents. 

Thus  the  interpretation  of  the  Twelve  Tables,  in  dealing  with 
mancipatio,  the  formal,  rigorous,  ready-money  sale  of  the  early 
law,  had  produced  a  twofold  result : 

(1)  It  had  developed  a  formal  method  for  conveying  ownership 
for  any  purpose  whatsoever ; 

(2)  It  had  developed  a  whole  series  of  transactions  (negotia 
bonae  fidei)  based  upon  credit,  being  the  various  cases  of  fiducia, 
which  were  concluded  '^e,'  by  performance,  that  is,  by  mancipation 
(sestertio  nummo  uno). 

With  regard  to  Nexum,  no  corresponding  development  took 
place.  Nexum  remained  what  it  had  been,  a  loan-transaction,  and 
was  subsequently  superseded  as  such  by  the  formless  loan  called 
'Mutuum.'  The  sole  trace  of  the  original  severity  of  the  formal 
contract  of  loan  is  to  be  found  in  the  fact  that  mutuum  was  a 
negotium  stricti  juris.  It  was  reserved  for  *  Stipulatio '  to  supply 
a  type  for  all  agreements  in  which  the  solemn  promise  of  the  debtor 
gives  rise  to  a  rigorously  unilateral  obligation  quite  irrespective  of 


Chap.  XXVIII.]  SALES   AND    LOANS   AT   ROME  527 

the  legal  ground  on  which  such  obligation  is  based.  Stipulatio  was 
the  outcome  of  the  ancient  'sponsio,'  and  resembled  nexum  in  so 
far  as  the  underlying  idea  in  both  was  originally  a  kind  of  self- 
pledge  ;  but  it  differed  from  nexum  in  that  the  pledge  implied  in 
stipulatio  could  only  be  enforced  by  the  gods.^ 

As  the  mancipatio  fiduciae  causa  supplied  the  foundation  for  the 
negotia  bonae  fidei  of  a  later  period,  so  nexum  is  the  type  and  basis 
of  the  negotia  stricti  juris,  i.e.  transactions  which  generate  a  rigor- 
ously unilateral  obligation  and  leave  no  latitude  to  the  discretion  of 
the  judge. 

3.    The  Beginnings  of  the  Jus  Gentium 

From  the  earliest  times  there  must,  of  course,  have  existed  in 
Rome,  side  by  side  with  the  formal  juristic  acts  which  alone  enjoyed 
the  sanction  and  force  of  the  jus  civile,  a  countless  variety  of  trans- 
actions which  were  despatched  without  any  form  whatever.  It 
happened,  as  a  matter  of  course,  that  many  a  sale  was  made  by 
simple  delivery  of  the  article  and  payment  of  the  price,  many  a  loan, 
too,  contracted  by  simple  handing  over  of  the  money,  and  so  on. 
In  other  words,  there  were  informal  sales,  loans,  deliveries  (with 
a  view  to  transferring  ownership  in  things),  and  so  forth.  But 
according  to  the  early  civil  law  all  these  informal  proceedings  were 
totally  devoid  of  legal  validity.  That  which  was  effected  by  an 
informal  sale  was,  of  course,  a  transaction,  but  not  a  juristic 
transaction.  Thus  if  A  sold  and  delivered  something  to  B  which 
did  not  belong  to  him,  and  B  were  evicted  by  the  true  owner,  he 
had  no  action  against  A.  There  was  no  question  of  law  at  all ; 
the  whole  relationship  between  A  and  B  was  purely  one  oifact,  and 
might,  in  this  respect,  be  compared  to  our  position  in  dealing  with 
savage  tribes.  We  may  sell  to  them,  and  barter  with  them,  but 
no  legal  relations,  no  actionable  rights,  are  called  into  existence. 

1  Sponsio  was  the  name  originally  given  to  a  contract  which  was  con- 
cluded by  a  libation,  i.e.  by  a  formal  self-denunciation,  to  the  following 
effect :  —  Even  as  this  wine  now  flows,  so  may  the  punishing  gods  cause 
the  blood  of  him  to  flow  who  shall  be  the  first  to  break  this  covenant. 
(Cp.  Leist,  "Graco-italische  Rechtsgeschichte "  (1884),  p.  457  ff.).  The 
original  obligation  created  by  such  a  promise  was  a  purely  moral,  or  reli- 
gious one,  partaking  largely  of  the  nature  of  an  oath.  It  was  not  till  later 
that  it  assumed  a  legal  character.  When  Cicero  saj's  that  to  'spondere, 
promittere'  is  to  'obligare  fidem,'  his  words  seem  to  point  to  some  sur- 
viving notion  of  a  pledge  of  one's  moral  self  (cp.  A.  Pernice,  "Labeo," 
vol.  i.  (1873),  p.  408).  German  law  confirms  the  vdew  that  all  the  oldest 
contracts  originated  in  some  kind  of  pledge  (obligatio),  whether  of  one's 
person  or  of  portions  of  one's  property\  Cp.  e.g.  J.  Kohler,  "Shak- 
speare  vor  dem  Forum  der  Jurisprudenz,"  vol.  i.  (1883),  p.  52  ff.  :  Heusler, 
"Institutionen  des  deutsehen  Privatrechts,"  vol.  i.  (1885),  p.  104. 


528  THINGS  [Part  III. 

There  was,  however,  one  element  which  was  bound,  in  the  long 
run,  to  secure  the  legal  recognition  of  these  formless  transactions. 
This  element  was  the  foreign  trade,  in  so  far  as  it  was  carried  on 
within  the  confines  of  Rome.  Every  alien,  i.e.  non-citizen,  was,  as 
such,  absolutely  debarred  from  the  use  of  any  of  the  formal  juristic 
acts  of  early  Roman  law.  Mancipatio  as  well  as  nexum  was,  on 
principle,  null  and  void,  if  one  of  the  parties,  nay,  if  one  of  the 
witnesses,  were  without  the  Roman  civitas.  Thus,  even  though  a 
foreign  merchant,  i.e.  one  who  did  not  enjoy  the  privileges  of 
Roman  citizenship,  were  quite  willing,  in  doing  business  in  Rome, 
to  observe  the  forms,  say,  of  mancipatio,  it  would  have  been  useless, 
because  the  mancipatio  would  have  been  none  the  less  void.  The 
result  was  that  the  commercial  dealings  of  aliens  in  Rome,  including 
therefore,  the  dealings  of  aliens  with  Roman  citizens,  were  at  all 
times  confined,  without  option,  to  the  formless  transactions  just 
referred  to.  For  aliens  these  were  the  only  juristic  acts.  Of  course 
such  a  system  could  not  last.  The  commercial  transactions  of  the 
foreign  merchants  could  not  remain  permanently  outside  the  pale  of 
the  law,  and  some  method  had  to  be  devised  by  which  they  should 
obtain  legal  validity  not  only  if  both  parties  were  aliens,  but  also  if 
one  of  them  were  a  Roman  citizen.  Inasmuch,  moreover,  as  even 
Roman  citizens,  among  themselves,  were  making  daily  and  habitual 
use  of  these  informal  acts,  it  was  quite  obvious  that  their  gradual 
recognition  by  the  law  was  a  matter  of  pressing  importance  to  citi- 
zens and  aliens  alike. 

At  a  subsequent  period  the  law  under  which  aliens  traded  in 
Rome  assumed  a  shape  which  served  to  bring  out  the  full  signifi- 
cance of  the  process  with  which  we  are  here  concerned.  In  the 
course  of  the  first  centuries  of  its  history  (down  to  about  250  B.C.), 
the  Roman  community  frequently  concluded  international  and 
commercial  treaties  with  other  states  (as,  for  example,  Carthage), 
members  of  which  were  permitted  to  engage  in  commerce  in  the 
Roman  market.  By  these  treaties  legal  protection  and  legal 
capacity  were  reciprocally  guaranteed  to  members  of  the  communi- 
ties concerned,  the  legal  protection  being  secured  in  Rome  by  means 
of  the  courts  of 'recuperatores.'  .  .  .  In  Rome  a  special  judge  for 
foreigners,  a  'praetor  peregrinus,'  was  appointed  in  242  B.C.  This 
marks  the  final  victory  of  the  movement.  We  have  now  a  law 
for  the  citizen,  as  such,  the  jus  civile,  and,  beside  it,  a  law  for  the 
alien,  as  such,  the  jus  gentium.  Thus  there  sprang  from  the  inter- 
course with  foreigners  the  second  great  power  in  the  working  system 
of  Roman  law,  viz.  the  jus  gentium,  and  it  was  the  very  exclusion 


Chap.  XXYIII.]  SALES   AXD    LOANS   AT    ROME  529 

of  aliens  from  the  privileges  of  the  jus  civile  which  rendered  the 
birth  of  the  new  force  possible.  It  is  certain  that  the  contents  of 
the  jus  gentium  were  largely  determined  by  the  example  of  such 
laws  as  had  come  to  regulate  the  rights  of  aliens  in  other  commer- 
cial centres  of  the  age.  The  legal  convictions  of  foreign  nations 
struck  root  in  Rome  itself  and  appeared  in  the  form  of  the  jus 
gentium.  In  addition  to  this,  we  must  not  fail  to  bear  in  mind 
that  from  this  same  time  onwards  the  ancient  national  character  of 
Rome  was  steadily  yielding  to  the  inroads,  increasingly  powerful,  of 
foreign,  more  especially  Greek,  elements  bearing  within  them  the 
whole  accumulated  force  of  Hellenic  culture.  The  whole  world 
came,  so  to  speak,  to  make  Rome  its  capital,  and  with  it  came  the 
jus  gentium,  a  law,  not  for  any  particular  state,  but  universal ;  a 
law  not  merely  for  the  citizen,  but  for  the  jjrimte  jjerson  as  such. 
The  jus  gentium  came  to  fulfil  its  twofold  vocation.  It  was 
destined  not  only  to  shape  and  determine  the  legal  rights  of  aliens  in 
Rome,  but  also  to  guide  and  direct  the  Roman  civil  law  itself. 
For  by  securing  the  legal  recognition  of  formless  transactions,  i.e. 
such  as  depend  for  their  effect  not  on  any  form,  not  on  something 
visible,  external,  or  tangible,  but  rather  on  the  u'ill  of  the  parties 
themselves,  the  jus  gentium  was  laying  down  the  lines  of  a  new 
development  for  the  law  governing  the  ordinary  dealings  between 
Roman  and  Roman. 

In  this  way  it  gradually  came  to  be  acknowledged  that  legal 
ownership  (in  res  nee  mancipi)  could  be  validly  acquired  by  means 
of  a  formless  traditio.  The  only  c{ualification  seems  to  have  been 
that  such  traditio,  in  order  to  pass  ownership,  must  take  place  in 
pursuance  of  a  sale,  and  the  purchaser  must  have  actually  paid  the 
price.  For  the  rule  of  the  Twelve  Tables  that  no  ownership  could 
pass  to  the  vendee  unless  he  actually  paid  the  price  or  were  given 
credit  for  it  by  the  vendor,  was  deemed  to  apply,  in  an  equal  meas- 
ure, to  the  transfer  of  ownership  by  traditio.  The  principle  that, 
in  sales,  ownership  could  pass  by  traditio,  was  then  extended  from 
sales  to  traditio  in  general,  provided  only  the  parties  had  concluded 
some  transaction  which  placed  the  intention  to  convey  ownership 
beyond  doubt.  Thus  the  necessity  for  a  solemn  mancipatio  was,  in 
the  end,  confined  to  certain  classes  of  things  only,  viz.  those  com- 
prised under  the  collective  name  of  'res  mancipi'  in  dealing  with 
which  it  seems  probable  that,  from  the  oldest  times,  mancipatio 
w'as,  as  a  matter  of  fact,  almost  universally  employed.  Those 
' res '  comprised  all  such  things  as  constituted,  properly  speaking, 
a  farmer's  stock-in-trade:    his  land  (fundus  Italicus),  his  slaves, 


530  THINGS  [Part  III. 

his  live-stock  (beasts  of  draught  and  carriage).  All  other  things 
were  'res  nee  mancipi,'  so  that  simple  delivery  (traditio)  was 
sufficient  for  the  purpose  of  conveying  ownership.  Such  would 
be,  e.g.  money,  articles  of  dress,  tools,  etc.,  in  short,  all  such  things 
as  were  intended  not  so  much  for  permanent  possession  as  for 
commercial  intercourse. 

In  the  same  way  as  informal  traditio  thus  obtained  the  sanction 
of  law,  so  informal  sales,  loans,  etc.,  gradually  secured  legal 
recognition. 

The  old-fashioned  formalities  of  the  Roman  jus  civile  found  them- 
selves confronted  with  the  exigencies  of  a  world-wide  commerce. 
The  new  demands  which  had  thus  arisen  had  won  their  first 
victory  towards  the  close  of  the  Republic  by  securing  the  recogni- 
tion of  a  number  of  formless  juristic  acts.  The  whole  future 
course  of  development  was  virtually  involved  in  this  recognition. 
Thus  the  end  of  the  Republic  marks  the  commencement  of  that 
process  by  which  the  local  law  of  the  city  of  Rome  was  gradually 
converted  into  that  which  Roman  law  was  destined,  at  a  future 
time,  to  be,  viz.  the  general  law  of  the  civilized  world. 


Chapter  XXIX 
INTEREST  1 

1.  Just  as  in  the  law  of  things  there  is  a  right  of  security  as 
well  as  a  right  of  servitude,  so  too  in  the  law  of  obligations  there 
is  a  barter  of  value  ("Werttausch"),  that  is  to  say,  a  value,  a 
money  value  being  given  for  a  money  value.  But  as  value  and 
value  are  naturally  equivalent,  the  exchange  can  only  take  place 
with  a  difference  in  time :  one  and  the  same  value  takes  on  a 
diflPerent  significance  when  present  value  and  future  value  stand 
opposite  each  other.  Thus,  all  business  that  has  to  do  only  with 
money  values  is  a  business  that  exchanges  a  present  for  a  future 
value. 

2.  In  the  closest  relation  to  the  use  of  capital  stands  the  theory 
of  interest.  In  the  life  of  primitive  peoples,  where  the  production 
of  value  is  generally  agricultural  and  little  free  or  available  capital 
is  found,  the  loan  is  nearly  always  consumable  in  its  nature :  it 
is  given  either  in  moments  of  dire  need,  or  in  moments  of  reckless- 
ness. In  this  case,  it  is  comprehensible  if  it  is  thought  to  be 
hard  if  neighbors  and  members  of  the  same  tribe  require  the  return 
not  only  of  the  capital,  but  of  something  more  as  well.  A  man 
should  aid  his  neighbor,  and  not  make  his  necessity  a  source  of 
profit;  and  if  he  abets  his  recklessness,  the  matter  should  be  so 
arranged  that  he  suffers  by  it  as  little  as  possible.  This  is  the 
origin  of  the  rule  that  forbids  the  taking  of  interest.  The  pro- 
hibition accords  with  the  times  in  which  the  use  of  free  capital 
was  rare. 

3.  But  it  continued  in  later  periods,  and  in  this,  two  motives 
were  concerned.  First,  a  speculative  one,  the  idea  that  the 
future  is  still  a  zero,  and  cannot  be  made  the  object  of  agreements ; 
something  that  is  now  present  should  not  be  given  for  something 
that  thus  belongs  to  the  future.     This  idea  has  been  carried  out 

'  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law  " 
(Albrechfs  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  Vol.  XII).] 

531 


532  THINGS  [Part  III. 

by  the  nations  even  in  regard  to  interest ;  and  they  have  assumed, 
that  in  this  respect,  trading  with  future  values  is  still  less  admis- 
sible than  where  physical  products  are  concerned.  For,  even  if 
free  capital  brings  advantages,  yet  these  are  not  as  tangible  as 
products ;  they  are  profits  that  appear  sometimes  in  one  way, 
sometimes  in  another ;  profits  that  are  difficult  to  separate  from 
the  results  of  work  and  the  success  of  speculation.  Hence, 
they  are  less  the  subject  of  agreements  than  are  future  physical 
products ;  and,  thus,  the  idea  of  the  sterility  of  money  develops, 
an  idea  which  the  Scholastics  of  the  Middle  Ages  spun  out  to 
great  lengths. 

4.  An  additional  motive  was  the  inherent  impulse  to  increase 
individual  activity-,  and  to  prevent  the  individual  from  retiring 
with  the  proceeds  of  his  principal.  In  this  respect,  the  prohibition 
of  taking  interest  long  exercised  a  favorable  influence.  Anyone 
who  has  available  capital  should  seek  to  make  use  of  it  himself, 
in  agriculture,  industry,  or  trade;  the  division  between  capital 
and  labor  that  exists  to-day  would  have  been  impossible  at  that 
time.  Whoever  wanted  to  live  on  his  capital  was  obliged  to  pay 
some  attention  to  its  employment,  and  could  not  simply  draw 
the  interest  on  it  without  considering  what  was  being  done  witli 
it.  One  kind  of  investment  was  the  usufructuary  pledge,  the 
capitalist  taking  a  piece  of  land  into  his  possession  in  return  for 
money  lent.  He  was  allowed  to  use  the  proceeds  of  the  land,  as 
these  were  not  interest  but  the  results  of  the  use  of  the  land,  and 
for  this  land  he  had  given  his  capital.  But  this  method  gradually 
fell  under  suspicion,  and  it  was  difficult  to  refute  the  idea,  that 
the  capitalist  should  really  credit  the  proceeds  of  this  land  to  his 
capital ;  and  so  it  happened,  that  in  time  even  this  method  of 
applying  capital  was  declared  to  be  usury,  and  it  was  looked 
upon  as  if  interest  were  taken  instead  of  merely  what  the  land 
produced. 

Another  transaction  of  this  kind,  was  the  purchase  of  an  annuity 
("Rentenkauf "),  which  consisted  in  a  man's  receiving  for  his 
capital  a  perpetual  income  from  a  piece  of  land.  The  capitalist 
might  not  demand  the  return  of  his  money,  but  the  debtor,  on 
the  contrary,  was  allowed  to  redeem  the  sums  paid  as  part  of  the 
annuity.  These  sums  were  not  regarded  as  interest,  because  a 
capital  debt  ("  Hauptgutschuld ")  was  necessary  to  a  debt  that 
bore  interest.  That  there  was  much  disapproval  of  this  trans- 
action is  easy  to  understand. 

These  two  arrangements  made  it  possible  to  circumvent  the 


Chap.  XXIX.]  INTEREST  533 

prohibition  against  interest,  though  not  entirely  ;  for  after  all,  the 
usufructuary  pledge  creditor  was  obliged  to  occupy  himself  with 
the  cultivation  of  the  soil,  and  whoever  lent  his  capital  for  a  per- 
petual annuity  could  not  prosper  unless  he  kept  an  eye  on  the 
man  who  paid  the  annuity  and  the  condition  of  his  land.  It  was 
sometimes  necessary  for  him  to  provide  for  the  further  cultivation 
of  the  land,  so  that  he  might  not  suffer  himself.  ' 

5.  In  trade,  too,  the  capitalist  had  to  take  part  in  the  business, 
if  he  wanted  his  money  to  be  productive.  But  it  was  possible  for 
him  to  have  an  associate  who  performed  most  of  the  active  duties, 
so  that  he  was  little  more  than  a  supervising  spectator.  This  is 
the  form  of  partnership  ("Kommenda-Geschaft")  which  developed 
equally  in  the  Orient  and  in  the  Occident,  and  by  which  a  capitalist 
provided  a  man  engaged  in  commerce  with  the  opportunity  of 
gaining  money  in  an  agreement  for  a  division  of  the  profits.  Thus, 
the  partnership  relation  was  a  deviation  from  the  rule,  and  it  was 
possible  to  draw  proceeds  from  capital,  even  if  the  economic  labor 
was  left  to  some  one  else.  It  was,  of  course,  advisable  for  the 
capitalist  to  exercise  a  certain  amount  of  supervision  and  care  in 
the  matter ;  and  even  to-day,  a  man  who  invests  his  fortune  in 
stocks  is  not  alive  to  his  interests  if  he  pays  no  attention  whatever 
to  the  business,  and  does  not  at  least  take  part  in  the  annual 
meeting,  or  in  some  other  way  acquaint  himself  with  the  manner 
in  which  the  business  is  carried  on. 

6.  This  necessity  of  combining  labor  and  care  with  capital,  in 
order  to  be  able  to  draw  income  from  it,  is  characteristic  of  certain 
periods.  With  a  people  that  has  to  be  trained  to  regular  occupa- 
tion, it  helps  to  develop  the  inclination  to  labor,  and  prevents  the 
individual  from  being  overwhelmed  by  the  tide  of  profit,  and 
working  only  until  he  can  retire  and  live  on  the  interest  of  his 
capital.  This  is  all  changed  as  soon  as  the  acquisitive  instinct  is 
so  far  developed  that  even  the  capitalist  wants  to  have  more  and 
more,  and  seeks  to  heap  up  treasures.  However  much  Stoic 
philosophy  may  despise  such  a  course,  however  strongly  it  may 
be  represented  to  the  individual,  that  he  will  achieve  more  by 
moderating  his  desire  for  acquisition,  the  striving  for  gain  will 
still  continue,  and  the  ambition  to  outdo  some  one  else  will  rule. 
The  result  will  be,  perhaps,  feverish  haste  and  rush,  but  it  will 
also  be  an  impulse  to  use  the  earth's  forces  in  all  directions,  and 
to  obtain  more  and  more  mastery  over  nature.  The  mastery  of 
nature  is  the  source  of  acquisition ;  for  nature  is  the  goddess  who 
pours  the  fruits  qf  industry  into  our  laps. 


534  THINGS  [Part  III. 

7.  At  this  point,  the  exchange  of  capital  becomes  of  the  greatest 
importance ;  because  now  the  first  concern  is  that  capital  should 
reach  the  person  who  can  do  the  most  with  it,  and  this  exchange 
of  capital  presupposes,  of  course,  the  charging  of  interest;  for, 
whoever  dispenses  with  money,  only  to  receive  it  back  again  after 
a  time,  will  find  this  no  profitable  undertaking.  Philanthropy 
may  indeed  lead  to  this,  but  philanthropy  is  generally  a  defective 
spring,  not  to  be  compared  to  the  tremendous  driving  power  of 
egoism ;  hence,  everything  that  promotes  healthy  egoism  must 
be  recognized  to  this  extent  as  also  promotive  of  culture,  and  this 
includes  the  charging  of  interest.  Therefore,  among  all  industrial 
peoples,  it  has  proved  necessary  to  allow  the  taking  of  interest ; 
and  this  interdiction  of  interest  was  either  directly  violated,  or 
circumvented,  in  every  possible  way;  it  had  been  outlived  and 
could  no  longer  exist. 

One  other  point  of  view  contributed  to  the  abolition  of  the 
interest  prohibition.  The  speculative  assertion  that  money  was 
unfruitful  was  met  by  the  statement,  that  when  a  man  has  to  do 
without  his  capital  for  a  time  he  suffers  damage ;  hence,  it  is  only 
just  that  he  should  receive  compensation.  So  it  followed,  that 
even  though  interest  was  unjustified  from  the  borrower's  point 
of  view,  it  was  yet  justified  from  the  lender's  standpoint ;  for  he 
cannot  be  required  to  do  without  his  money,  and  without  com- 
pensation renounce  the  profits  that  it  might  bring  him.  Thus, 
even  the  Canonists  have  long  recognized,  at  least  conditionally, 
the  admissibility  of  interest ;  and,  to-day,  there  is  no  longer  any 
doubt  about  it,  even  in  ecclesiastical  circles. 

8.  In  the  lives  of  nations,  a  system  frequently  develops  accord- 
ing to  which  legal  rates  of  interest  are  established.  This  is  not 
an  isolated  phenomenon  ;  in  a  similar  way,  certain  rates  are  deter- 
mined for  the  purchase  of  provisions,  for  contracts  of  service,  and 
other  things.  The  idea  that  underlies  all  this  is,  that  when  com- 
merce does  not  regulate  itself,  it  must  be  regulated  by  definite 
rules ;  so  that  no  one  can  take  advantage  of  another's  necessitous 
condition,  need  of  provisions,  or  of  employment,  and  thus  intro- 
duce needless  contingencies  into  economic  life.  It  is  the  same 
as  regards  money;  for,  it  was  long  before  competition  among 
those  who  granted  credit  forced  the  price  of  credit  down  to  a  just 
basis.  It  was  not  until  then  that  a  certain  average  current 
interest  arose,  which  of  itself  became  a  standard,  and  helped 
would-be  borrowers  in  acute  situations  and  difficulties. 

Such  conditions  in  fact  lasted  very  long;    hence  it  is  compre- 


Chap.  XXIX.] 


INTEREST 


535 


liensible  that  the  establishment  of  a  rate  of  interest  became  wide- 
spread and  has  continued  for  centuries.  Nor  are  we  concerned 
here  with  the  absurdities  that  have  prevailed,  or  periods  of  eco- 
nomic ignorance,  but  the  definite  conditions  of  human  culture 
through  which  the  nations  had  to  pass,  and  whose  peculiar  needs 
required  peculiar  legal  forms. 


Chapter  XXX 

SUCCESSION 

Section  1 
SURVEY   OF   THE    LAW   OF   SUCCESSION » 

(A)  In  General. 

1.  Inheritance  is  based  on  the  idea  of  the  continuity  of  the 
individual  property  after  the  death  of  its  owner,  through  a  person 
who  is  connected  with  this  owner  in  a  definite  way,  either  by  reason 
of  family  or  a  similar  relationship,  or  by  reason  of  a  legally  effec- 
tive testamentary  provision  that  creates  a  new  relationship. 

2.  The  right  of  inheritance,  therefore,  does  not  exist  in  any  of 
the  following  cases : 

(a)  If  after  the  ow^ner's  death  the  property  reverts  to  the  com- 
munity. Hence  when,  in  Rome,  property  fell  to  the  "gentiles," 
or  when  as  to-day,  in  the  absence  of  heirs,  it  falls  to  the  fiscus, 
it  is  improper  to  designate  this  an  inheritance.  It  is  merely  called 
inheritance,  because  the  technical  juristic  principles  governing 
inheritance  law  have  been  extended  to  include  such  cases. 

(6)  Neither  is  it  inheritance  if  the  proprietary  rights  of  the 
deceased  cease,  and  another,  unrelated  to  him,  acquires  the 
property;   for  instance,  by  new  investiture  ("Neuverleihung"). 

(p)  It  is  not  inheritance  if  a  man  is  a  joint  owner,  and  on  his 
death  his  share  either  is  merged  in  others,  or  another  takes  his 
place  as  a  joint  owner,  but  not  by  virtue  of  the  dead  person's 
disposition  of  his  property,  but  owing  to  the  special  principles 
governing  rights  held  jointly. 

{d)  It  is  not  inheritance  if  the  property  of  a  juristic  person, 
after  the  dissolution  of  the  juristic  person,  falls  to  an  individual, 
or  another  juristic  person ;  although  this,  too,  is  often  treated 
technically  as  an  inheritance. 

'  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law  " 
(^Zbrec/ii's  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law  Series, 
Vol.  XII).] 

536 


Chap.  XXX,  §  1.]  SUCCESSION  537 

3.  As  inheritance  rests,  above  all,  on  family  relations,  the 
principles  of  family  organization  are  mainly  determinative  for  the 
inheritance,  and  this  in  two  respects :  first  according  to  the  kind 
of  organization  and  then  according  to  the  degree  of  exclusiveness. 
If  we  ask  who  stood  nearest  to  the  deceased  person,  the  first 
thing  to  be  considered  is  whether  the  family  organization  conforms 
to  matriarchy  or  patriarchy ;  in  the  one  case,  the  nephew,  in  the 
other  the  sons,  will  succeed.  But,  also,  in  another  respect,  the 
family  organization  must  be  considered.  If  each  family  is  dis- 
tinct in  itself,  and  sharply  separated  from  the  other,  so  that, 
possibly,  they  are  at  odds  with  each  other,  then,  the  individual 
must  belong  exclusively  to  one  family  or  the  other,  since  one  could 
not  be,  at  the  same  time,  a  member  of  both  the  families  A  and  B. 
In  this  case,  the  succession  conforming  to  matriarchy  will  be 
exclusively  matriarchal,  and  that  conforming  to  patriarchy  exclu- 
sively patriarchal ;  and  in  the  latter  case,  the  child  will  be  able 
to  inherit  only  from  the  father  and  his  family,  not  from  the  mother 
and  her  relatives. 

Not  until  families  are  less  sharply  divided  from  one  another, 
and  are  merged  in  the  unity  of  the  State  to  which  they  leave  the 
guiding  functions  of  culture,  and  when  there  can  no  longer  be  any 
question  of  struggles  between  families,  does  the  time  come  when 
a  person  can  belong  to  several  families  as  regards  the  right  of 
inheritance. 

The  whole  development  of  the  law  of  inheritance  among  modern 
peoples  is  filled  with  this  idea ;  and  Roman  law,  in  particular, 
labored  for  five  centuries  before  it  finally  forsook  the  agnate  right 
of  inheritance,  that  is  to  say,  the  right  to  inherit  exclusively  from 
the  paternal  family,  and  established  the  right  to  inherit  from  both 
the  paternal  and  the  maternal  families,  which  is  called  the  cognate 
right  of  succession.  The  Germanic  law  also  developed  in  the 
same  way ;  largely,  it  is  true,  under  the  influence  of  Roman  law. 

4.  The  position  of  women,  as  regards  the  law  of  inheritance,  is 
also  closely  connected  with  the  family  system ;  as  appears,  for 
instance,  in  the  treatment  of  daughters.  Patriarchy  does  not  in- 
deed prevent  both  sons  and  daughters  from  inheriting  from  the 
father,  but  the  daughter's  right  of  inheritance  leads  to  an  unde- 
sirable result ;  for  if  the  daughter  marries,  her  property,  according 
to  the  principles  of  patriarchy,  is  transferred  to  her  husband,  and 
the  property  of  her  family  is  thus  considerably  reduced.  If  the 
daughter  of  family  A  marries  into  family  B,  her  possessions  will 
fall  to  family  B,  and  thus  be  lost  to  family  A.     This  idea  of  itself 


538  THINGS  [Part  III, 

led  to  the  result  that  the  daughter  was  deprived  of  her  heritage 
and  restricted  to  her  dowry. 

From  this  standpoint,  there  could,  of  course,  be  no  question  of 
a  woman's  children's  inheriting  from  her,  as  by  her  marriage  she 
herself  had  been  deprived  of  her  property ;  and,  if  a  widow,  she 
became  dependent  on  annuities  and  usufructuary  rights. 

All  this  was  changed  when  the  principles  of  patriarchy  became 
weakened  and  a  woman  retained  her  property  in  spite  of  her 
marriage.  No  logical  reason  then  any  longer  existed  for  excluding 
daughters  from  the  right  of  inheritance,  although,  on  other  grounds, 
many  restrictions  were  laid  upon  their  inheritance  rights.  It 
followed,  that  the  children  of  a  mother  who,  as  a  wife  or  widow, 
possessed  property,  would  inherit  from  her;  for  it  was  no  longer 
in  accordance  with  the  principles  of  family  organization  that  a 
woman's  brothers  or  more  distant  paternal  relatives  should  inherit 
from  her  to  the  exclusion  of  her  own  children.  This  gave  rise  to 
the  right  of  children  to  inherit  from  their  mother,  which  can  be 
traced  in  various  forms  in  the  laws  of  nations  that  were  governed 
by  patriarchy,  as,  for  instance,  the  Romans  and  Jews. 

5.  With  this  development,  a  characteristic  change  took  place  in 
family  life.  Whereas,  in  the  time  of  family  property,  the  various 
branches  of  the  family  lived,  worked,  and  earned  together,  the 
different  brothers  and  their  branches  of  the  family  now  struck  out 
for  themselves.     This  brought  about  a  significant  new  formation. 

Formerly,  if  one  of  the  brothers  died  before  his  parents  and  left 
children,  these  children  inherited  nothing  ;  the  remaining  brothers 
inherited  everything,  and  were,  of  course,  obliged  to  care  for  their 
dead  brother's  children  as  for  their  own.  It  would  have  been 
considered  monstrous  for  these  children  to  have  contended  against 
their  uncles  and  claimed  anything  for  themselves.  But,  when 
once  the  fraternal  branches  of  the  family  were  separated,  so  that 
even  during  their  lifetime,  the  brothers  with  their  children  had 
separate  property,  then  the  opposite  course  must  have  appeared 
monstrous  ;  for  it  is  unnatural,  that  if  the  head  of  the  family  dies, 
and  leaves  descendants,  the  main  line  shall  suddenly  be  erased. 
If  the  other  bearers  of  the  family  name,  that  is  to  say,  the  brothers, 
are  still  alive,  it  may  indeed  long  appear  that  because  of  their  near 
relationship  to  the  head  of  the  family,  they  have  superior  rights 
in  his  property.  But  this  idea  soon  conflicts  with  another,  that 
the  children  of  a  dead  son  stand  quite  as  near  to  the  head  of  the 
family ;  in  fact,  that  the  relationship  of  grandchildren  to  their 
grandfather  is  usually  an  especially  intimate  one. 


Chap.  XXX,  §  1.]  SUCCESSION  539 

Thus  originates  what  has  been  called  the  right  of  representa- 
tion, which  in  reality  is  nothing  but  the  principle  of  trunk  dis- 
tribution ("Stammteilung"),  as  I  termed  it  thirty  years  ago. 
The  maintenance  of  the  opposite  principle  in  some  systems  of  law, 
among  others  in  that  of  Islam,  is  merely  a  defect  in  development, 
and  shows  that  these  systems  have,  in  this  respect,  remained 
arrested. 

The  same  applies  when  there  are  no  sons  living,  but  only  grand- 
sons ;  in  this  case,  the  idea  of  treating  all  the  grandsons  equally, 
without  regard  to  the  number  of  family  branches  and  the  number 
of  children  in  each  line,  is  also  a  defect  which  stands  in  open  con- 
tradiction to  the  usual  separation  of  the  lines ;  for  which  reason, 
all  the  nations  of  the  European  continent  have  accepted  the  divi- 
sion into  family  lines. 

(B)  Indivisible  and  Divisible  Inheritance  ("Einheits-und  Mehr- 
heitserbrecht"). 

1.  The  struggle  between  individualism  and  the  social  tenden- 
cies of  humanity  is  also  seen  in  the  law  of  inheritance.  On  the  one 
hand,  the  individual  demands  consideration,  and,  if  there  are 
several  persons  of  equal  position,  he  demands  the  same  measure 
and  amount  of  consideration  as  they  receive.  On  the  other  hand, 
social  life  often  demands  that  a  deviation  be  made,  and  that  one 
or  more  individuals  be  forced  into  the  background. 

This  struggle  is  especially  pronounced  in  the  treatment  of 
children.  That  for  a  long  time  women  were  less  favored  than 
men,  that  is,  the  daughters  less  than  the  sons,  was  due  to  the 
special  law  governing  the  sexes.  Yet,  even  among  persons  of  the 
same  sex,  although  the  individual  urges  equal  treatment,  the  social 
aspects  of  the  family  and  of  property  frequently  require  another 
course. 

2.  The  social  mission  of  the  family  often  demands,  in  particu- 
lar, that  the  estate  remain  intact,  and  not  be  divided  among  several 
children.  This  may  be  the  case  for  various  reasons  ;  especially  if 
a  division  of  the  estate  would  mean  that  its  power  would  be 
destroyed  or  weakened ;  the  portions  into  which  it  would  be 
separated  not  having  the  same  economic  significance  as  the  unified 
whole.  Religious  reasons  often  oppose  such  division,  when  the 
estate  is  also  dedicated  to  the  gods  and  to  their  service,  and 
religious  observances  in  the  family  are  to  remain  uniform. 

3.  This  disagreement  may  be  avoided  if  the  estate  remains 
intact,  and  the  children  live  together  in  unity  ;  so  that  the  property 
of  the  head  of  the  familv  belongs  to  all  the  children  and  their 


540  THINGS  [Paet  III. 

descendants,  while  the  fact  that  its  nianagement  remains  in  the 
hands  of  one  person  does  not  prevent  the  various  members  of  the 
family  from  pursuing  different  interests.  But,  from  what  has 
already  been  said,  we  have  seen  that  it  is  not  possible  for  the 
family  to  continue  in  this  kind  of  life  permanently ;  for  not  only 
do  the  interests  of  the  different  members  clash,  but  also  their 
fundamental  differences  of  character,  and  this  must  necessarily 
break  up  the  unity. 

4.  If  the  individual's  claim  to  a  division,  and  the  social  claim 
to  unity,  of  the  estate,  cannot  be  reconciled  in  this  way,  one  of 
the  two  claims  is  forced  into  the  background.  And  here,  it  is 
self-evident  that  the  social  interest  must  come  before  the  individual 
claim ;  for  under  the  stress  of  social  decay,  the  individual  also 
would  be  ruined ;  whereas  if  social  interests  are  maintained,  it  is 
still  always  possible  for  the  individual  to  make  his  way,  and  find 
his  proper  course.  This  has  led  to  various  solutions.  The  whole 
estate  may  go  to  only  one  child  as,  for  instance,  in  East  Asia,  in 
China,  and  Japan,  or  at  least  one  child  may  receive  far  the  greater 
part  of  it,  and  at  the  same  time  be  obliged,  more  or  less,  to  pro- 
vide for  the  others.  A  more  detailed  discussion  of  the  subject 
lies  within  the  province  of  legal  history.  It  need  only  be  said 
here,  that  philosophically  all  these  institutions  sustain  the  social 
endeavor  to  counterbalance  the  exaggeration  of  individual  activity. 
The  special  question  whether  the  oldest  or  the  youngest  child,  or 
one  chosen  by  the  family,  or  by  the  father  himself,  is  to  be  the 
manager  of  the  whole,  cannot  be  generally  solved,  but  must  depend 
on  the  conditions  of  life,  and  on  national  views  and  customs.  It 
may  be  said,  however,  that  the  right  of  the  eldest  would  seem  to 
be  the  most  natural  and  appropriate;  for  the  eldest  son  is  thus 
placed  somewhat  in  the  position  of  a  parent,  as  regards  the  younger 
children,  and  this  gives  him  a  certain  support.  The  right  of  the 
youngest  son,  on  the  contrary,  can  only  be  justified  by  certain 
peculiar  family  conditions ;  as,  for  instance,  if  the  older  sons  have 
left  the  home,  and  the  youngest  devotes  himself  to  the  care  of  his 
parents,  and  hence  takes  over  their  house  and  property.  The 
practice  of  permitting  either  the  family  or  the  father  to  make  the 
choice  will  lead  to  favorable  results  only  if  the  others  have  so 
much  confidence  in  the  one  entitled  to  choose,  and  if  the  family 
feeling  is  so  strong,  that  all  immediately  submit  to  the  choice  made, 
and  also  if  their  faithfulness  to  duty,  and  to  the  w^elfare  of  the 
family,  is  unquestionable ;  so  that  it  need  not  be  feared,  that 
those  with  whom  the  choice  rests  will  allow^  themselves  to  be  in- 


Chap.  XXX,  §   1.]  SUCCESSION  541 

fluenced  by  personal  motives  —  a  proceeding  that  would  mean 
psychic  ruin  and  the  decline  of  the  family.     With  us  such  a  right 
of  choice  has  therefore  been  generally  excluded. 
(C)  Disposal  of  Property  after  Death. 

1.  The  question  whether  it  is  proper  to  accord  to  the  holder  of 
property  the  capacity  to  determine  the  fate  of  the  inheritance 
after  his  death  has  occupied  the  nations  much.  The  discussion 
of  those  particular  conditions  that  led  to  the  introduction  of 
the  will  belongs  to  the  history  of  the  law.  There  it  appears, 
that  quite  different  motives,  which  were  partly  religious,  partly 
of  a  family  nature,  and  partly  also  connected  with  statesmanship, 
led  to  the  granting  of  such  a  right  of  disposition  in  greater  or 
less  measure. 

2.  The  legal  philosophical  significance  of  the  will  lies  in  the 
increased  importance  of  the  individual,  as  opposed  to  the  family, 
and  in  the  insistent  claims  of  the  members  of  the  family  to  the 
property  left.  The  claims  of  the  family  as  regards  the  different 
portions  of  the  property  are  not  always  equally  powerful ;  not 
seldom,  a  distinction  is  made  between  property  which  the  owner 
has  inherited  from  his  family,  and  property  which  he  himself  has 
acquired.  The  inherited  property  is  regarded  as  an  indivisible 
portion  of  the  family  property ;  and  this  view  frequently  brings 
the  efforts  of  the  individual  to  naught.  Of  acquired  property, 
on  the  other  hand,  the  individual  has  the  free  capacity  of  dis- 
position, even  after  death.  Here,  too,  we  see  the  conflict  between 
individualism  and  sociality,  and  the  question  is  whether  the  wel- 
fare of  society  is  to  be  expected  from  the  triumph  of  the  one  or  of 
the  other  element. 

3.  The  predominance  of  individualism  to  such  an  extent  that 
the  holder  of  property  has  the  power  of  disposition  corresponds 
to  human  development ;  for  it  is  promotive  of  culture,  if  property 
does  not  always  take  a  certain  course,  but  may  be  devised  by  the 
owner  to  certain  purposes,  and  thus  making  it  possible  that  great 
undertakings  of  mankind  may  be  considerably  advanced.  This 
gains  added  significance  from  the  fact  that  it  also  increases  the 
instinct  of  acquisition,  and  causes  a  man  to  strive  with  all  his 
might  to  obtain  the  means  of  carrying  out  his  will,  even  after 
death.  In  this  way,  the  possibility  of  disposing  of  property  after 
death  is  a  powerful  incentive ;  it  increases  the  individual's  devo- 
tion to  his  work  and  to  his  business  life,  and  this,  of  course,  ad- 
vances cultural  life  in  a  high  degree. 


542  THINGS  [Part  III. 

Section  2 

RELICxIOUS   BASIS    OF    INHERITANCE  ' 

1.   Nature  and  Principle  of  the  Right  of   Succession  among  the 

Ancients 

The  right  of  property  having  been  estabHshed  for  the  accom- 
pHshment  of  an  hereditary  worship,  it  was  not  possible  that  this 
right  should  fail  after  the  short  life  of  an  individual.  The  man 
dies,  the  worship  remains;  the  fire  must  not  be  extinguished,  nor 
the  tomb  abandoned.  So  long  as  the  domestic  religion  continued, 
the  right  of  property  had  to  continue  with  it. 

Two  things  are  closely  allied  in  the  creeds  as  well  as  in  the  laws 
of  the  ancients  —  the  family  worship  and  its  property.  It  was 
therefore  a  rule  without  exception,  in  both  Greek  and  Roman  law, 
that  a  property  could  not  be  acquired  without  the  worship,  or  the 
worship  without  the  property,  "Religion  prescribes,"  says 
Cicero,  "that  the  property  and  the  worship  of  a  family  shall  be 
inseparable,  and  that  the  care  of  the  sacrifices  shall  always  devolve 
upon  the  one  who  receives  the  inheritance."  ^  At  Athens  an  orator 
claims  a  succession  in  these  terms :  "Weigh  it  well,  O  judges,  and 
say  whether  my  adversary  or  I  ought  to  inherit  the  estate  of  Phi- 
loctemon,  and  offer  the  sacrifices  upon  his  tomb."  ^  Could  one  say 
more  directly  that  the  care  of  the  worship  was  inseparable  from 
the  succession  ?  It  was  the  same  in  India :  "  He  who  inherits, 
whoever  he  may  be,  is  bound  to  make  the  offerings  upon  the  tomb."  "^ 

From  this  principle  were  derived  all  the  rules  regarding  the  right 
of  succession  among  the  ancients.  The  first  is  that,  the  domestic 
religion  being,  as  we  have  seen,  hereditary  from  male  to  male, 
property  is  the  same.  As  the  son  is  the  natural  continuator  of  the 
religion,  he  also  inherits  the  estate.  Thus  the  rule  of  inheritance 
is  found ;  it  is  not  the  result  of  a  simple  agreement  made  between 
men ;  it  is  derived  from  their  belief,  from  their  religion,  from  that 
which  has  the  greatest  power  over  their  mind.  It  is  not  the  per- 
sonal will  of  the  father  that  causes  the  son  to  inherit.  The  father 
need  not  make  a  will ;  the  son  inherits  of  full  right,  —  ipso  jure 
heres  existit,  —  says  the  jurisconsult.     He  is  even    a    necessary 

1  [By  FtrsTEL  de  Coulanges,  "  The  Ancient  City " ;  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

-  Cicero,  ^'De  Legib.,"  II.  19,  20.     Festus,  v.  ^'Everriator." 

3  Is(Eus,  VI.  51.     Plato  calls  the  heir  StdSoxos  deQv.     "Laws,"  V.  740, 

*  "Laws  of  Manu,"  IX.  186. 


Chap.  XXX,  §  2.]  SUCCESSION  .  543 

successor  —  heres  necessarius}  He  has  neither  to  accept  nor  to 
reject  the  inheritance.  The  continuation  of  the  property,  like 
that  of  the  worship,  is  for  him  an  obHgation  as  well  as  a  right. 
Whether  he  wishes  it  or  not,  the  inheritance  falls  to  him,  whatever 
it  may  be,  even  with  its  encumbrances  and  its  debts.  The  right 
to  inherit  without  the  debts,  and  to  reject  an  inheritance,  was  not 
allowed  to  the  son  in  Greek  legislation,  and  was  not  introduced 
until  a  later  period  into  Roman  law. 

The  judicial  language  of  Rome  calls  the  son  heres  suus,  as  if  one 
should  say,  heres  sui  ipsius.  In  fact,  he  inherits  only  of  himself. 
Between  his  father  and  him  there  is  neither  donation,  nor  legacy, 
nor  change  of  property.  There  is  simply  a  continuation  —  morte 
parentis  continuatur  dominium.  Already,  during  the  life  of  the 
father,  the  son  was  co-proprietor  of  the  field  and  house  —  vivo 
quoque  patre  dominus  existimatur} 

To  form  an  idea  of  inheritance  among  the  ancients,  we  must  not 
figure  to  ourselves  a  fortune  which  passes  from  the  hands  of  one  to 
those  of  another.  The  fortune  is  immovable,  like  the  hearth,  and 
the  tomb  to  which  it  is  attached.  It  is  the  man  who  passes  away. 
It  is  the  man  who,  as  the  family  unrolls  its  generations,  arrives  at 
his  hour  appointed  to  continue  the  worship,  and  to  take  care  of  the 
domain. 

2.    The  Son,  not  the  Daughter,  inherits 

It  is  here  that  ancient  laws,  at  first  sight,  appear  whimsical  and 
unjust.  We  experience  some  surprise  when  we  see  in  the  Roman 
law  that  the  daughter  does  not  inherit  if  she  is  married,  and  that, 
according  to  the  Greek  law,  she  does  not  inherit  in  any  case.  What 
concerns  the  collateral  branches  appears,  at  first  sight,  still  farther 
removed  from  nature  and  justice.  This  is  because  all  these  laws 
flow,  according  to  a  very  rigorous  logic,  from  the  creed  and  religion 
that  we  have  described  above. 

The  rule  for  the  worship  is,  that  it  shall  be  transmitted  from  male 
to  male ;  the  rule  for  the  inheritance  is,  that  it  shall  follow  the 
worship.  The  daughter  is  not  qualified  to  continue  the  paternal 
religion,  since  she  may  marry,  and  thus  renounce  the  religion  of 
her  father  to  adopt  that  of  her  husband ;  she  has,  therefore,  no 
right  to  the  inheritance.  If  a  father  should  happen  to  leave  his 
property  to  a  daughter,  this  property  would  be  separated  from  the 
worship,  which  would  be  inadmissible.     The  daughter  could  not 

'  "  Digest,"  XXXVIII.  tit.  16,  14. 

2  "Institutes,"  III.  1,  3;   III.  9,  7;   III.  19,  2. 


544  .  THINGS  [Part  III. 

even  fulfil  the  first  duty  of  an  heir,  which  was  to  continue  the  series 
of  funeral  repasts ;  since  she  would  offer  the  sacrifices  to  the  an- 
cestors of  her  husband.  Religion  forbade  her,  therefore,  to  in- 
herit from  her  father. 

Such  is  the  ancient  principle ;  it  influenced  equally  the  legis- 
lators of  the  Hindus  and  those  of  Greece  and  Rome.  The  three 
peoples  had  the  same  laws  ;  not  that  they  had  borrowed  from  each 
other,  but  because  they  had  derived  their  laws  from  the  same 
belief. 

"After  the  death  of  the  father,"  sa^'s  the  Code  of  Manu,  "let 
the  brothers  divide  the  patrimony  among  them;"  and  the  legis- 
lator adds,  that  he  recommends  the  brothers  to  endow  their  sisters, 
which  proves  that  the  latter  have  not  of  themselves  any  right  to  the 
paternal  succession. 

This  was  the  case,  too,  at  Athens.  Demosthenes,  in  his  orations, 
often  has  occasion  to  show  that  daughters  cannot  inherit.^  He  is 
himself  an  example  of  the  application  of  this  rule ;  for  he  had  a 
sister,  and  we  know,  from  his  own  writings,  that  he  was  the  sole  heir 
to  the  estate ;  his  father  had  reserved  only  the  seventh  part  to 
endow  the  daughter. 

As  to  Rome,  the  provisions  of  primitive  law  which  excluded  the 
daughters  from  the  inheritance  are  not  known  to  us  from  any 
formal  and  precise  text ;  but  they  have  left  profound  traces  in  the 
laws  of  later  ages.  The  Institutes  of  Justinian  still  excluded  the 
daughter  from  the  number  of  natural  heirs,  if  she  was  no  longer 
under  the  power  of  the  father ;  and  she  was  no  longer  under  the 
power  of  the  father  after  she  had  been  married  according  to  the 
religious  rites.^  From  this  it  follows  that,  if  the  daughter  before 
marriage  could  share  the  inheritance  with  her  brother,  she  had  not 
this  right  after  marriage  had  attached  her  to  another  religion  and 
another  family.  And,  if  this  was  still  the  case  in  the  time  of  Jus- 
tinian, we  may  suppose  that  in  primitive  law,  this  principle  was 
applied  in  all  its  rigor,  and  that  the  daughter  not  3^et  married,  but 
who  would  one  day  marry,  had  no  right  to  inherit  the  estate. 
The  Institutes  also  mention  the  old  princi])le,  then  obsolete,  but 
not  forgotten,  which  prescribed  that  an  inheritance  always  de- 
scended to  the  males.^  It  was  clearly  as  a  vestige  of  this  old  rule, 
that,  according  to  the  civil  law,  a  woman  could  never  be  constituted 
an  heiress.  The  farther  we  ascend  from  the  Institutes  of  Justinian 
towards  earlier  times,  the  nearer  we  approach  the  rule  that  woman 

1  Demosthenes,  "in  Boeotum."    Isceus,  X.  4.    Lysias,  "in  Mantith.,"  10. 

2  "Institutes,"  II.  9,  2.  ^  jud.,  III.  1,  15;   III.  2,  3. 


Chap.  XXX,  §  2.]  SUCCESSION  545 

could  not  inherit.  In  Cicero's  time,  if  a  father  left  a  son  and  a 
daughter,  he  could  will  to  his  daughter  only  one  third  of  his  fortune ; 
if  there  was  only  a  daughter,  she  could  still  have  but  half.  We 
must  also  note  that,  to  enable  this  daughter  to  receive  a  third  or 
half  of  this  patrimony,  it  was  necessary  that  the  father  should  make 
a  will  in  her  favor ;  the  daughter  had  nothing  of  full  right. ^  Fi- 
nally, a  century  and  a  half  before  Cicero,  Cato,  wishing  to  revive 
ancient  manners,  proposed  and  carried  the  Voconian  law,  which 
forbade,  —  1.  INIaking  a  woman  an  heiress,  even  if  she  was  an  onl}' 
child,  married  or  unmarried.  2.  The  willing  to  a  woman  of  more 
than  a  fourth  part  of  the  patrimony.-  The  Voconian  law  merely 
renewed  laws  of  an  earlier  date ;  for  we  cannot  suppose  it  would 
have  been  accepted  by  the  contemporaries  of  the  Scipios  if  it  had 
not  been  supported  upon  old  principles  which  they  still  respected. 
It  re-established  what  time  had  changed.  Let  us  add  that  it 
contained  nothing  regarding  heirship  ab  iniestaio,  probably  because 
on  this  point  the  old  law  was  still  in  force,  and  there  was  nothing 
to  repair  on  the  subject.  At  Rome,  as  in  Greece,  the  primitive 
law  excluded  the  daughter  from  the  heritage ;  and  this  was  only  a 
natural  and  inevitable  consequence  of  the  principles  which  religion 
had  established. 

It  is  true  men  soon  found  out  a  way  of  reconciling  the  religious 
prescription  which  forbade  the  daughter  to  inherit  with  the 
natural  sentiment  which  would  have  her  enjoy  the  fortune  of 
her  father.  The  law  decided  that  the  daughter  should  marry 
the  heir. 

Athenian  legislation  carried  this  principle  to  its  ultimate  conse- 
quences. If  the  deceased  left  a  son  and  a  daughter,  the  son  alone 
inherited  and  endowed  his  sister ;  if  the}'  were  not  both  children  of 
the  same  mother,  he  had  his  choice  to  marry  her  or  to  endow  her.^ 
If  the  deceased  left  only  a  daughter,  his  nearest  of  kin  was  his 
heir ;  but  this  relative,  who  was  of  course  also  a  near  relative  of 
the  daughter,  was  required,  nevertheless,  to  marry  her.  More 
than  this,  if  this  daughter  was  already  married,  she  was  required 
to  abandon  her  husband  in  order  to  marry  her  father's  heir. 
The  heir  himself  might  be  already  married ;    in  this  case,   he 

1  Cicero,  ''De  Rep.,"  III.  7. 

"^Cicero,  "in  Verr.,"  I.  42.  Livij,  XLI.  4.  St.  Augustine,  ^'Citj-  of 
God,"  III.  21. 

3  Demosthenes,  ^'in  Eubul.,"  21.  Plutarch,  "Themist.,"  32.  Isceus, 
X.  4.  Corn.  Nepos,  '''Cimon."  It  must  be  noted  that  the  law  did  not 
permit  marrying  a  uterine  brother,  or  an  emancipated  brother ;  it  could 
be  only  a  brother  by  the  father's  side,  because  the  latter  alone  could  in- 
herit of  the  father. 


546  THINGS  [Part  III. 

obtained  a  divorce,  in  order  to  marrj'  his  relative.^  We  see 
here  how  completely  ancient  law  ignored  nature  to  conform  to 
religion. 

The  necessity  of  satisfying  the  requirements  of  religion,  combined 
with  the  desire  of  saving  the  interests  of  an  only  daughter,  gave  rise 
to  another  subterfuge.  On  this  point  Hindu  law  and  Athenian 
law  correspond  marvellously.  We  read  in  the  Laws  of  ]Manu, 
"  He  who  has  no  male  child  may  require  his  daughter  to  give  him 
a  son,  who  shall  become  his,  and  who  may  perform  the  funeral 
ceremonies  in  his  honor."  In  this  case  the  father  was  required  to 
admonish  the  husband  to  whom  he  gave  his  daughter,  by  pronounc- 
ing this  formula :  "  I  give  you  this  daughter,  adorned  with  jewels, 
who  has  no  brother ;  the  son  born  of  her  shall  be  my  son,  and  shall 
celebrate  my  obsequies."  ^  The  custom  was  the  same  at  Athens; 
the  father  could  continue  his  descent  through  his  daughter,  by 
giving  her  a  husband  on  this  special  condition.  The  son  who  was 
born  of  such  a  union  was  reputed  the  son  of  the  wife's  father ;  fol- 
lowed his  worship  ;  assisted  at  his  religious  ceremonies  ;  and,  later, 
guarded  his  tomb.^  In  Hindu  law  this  child  inherited  from  his 
grandfather,  as  if  he  had  been  his  son ;  it  was  exactly  the  same  at 
Athens.  When  the  father  had  married  his  daughter  in  the  manner 
we  have  described,  his  heir  was  neither  his  daughter  nor  his  son- 
in-law  ;  it  was  the  daughter's  son.^  As  soon  as  the  latter  had 
attained  his  majority,  he  took  possession  of  the  patrimony  of 
his  maternal  grandfather,  though  his  father  and  mother  were 
still  living.^ 

This  singular  tolerance  of  religion  and  law  confirms  the  rule 
which  we  have  already  pointed  out.  The  daughter  was  not  qualified 
to  inherit ;  but,  by  a  very  natural  softening  of  the  rigor  of  this 
principle,  the  only  daughter  was  considered  as  an  intermediary  by 
whom  the  family  might  be  continued.  She  did  not  inherit ;  but 
the  worship  and  the  inheritance  were  transmitted  through  her. 

^  Isceus,  III.  64;  X.  5.  Demosthenes,  "in  EubuL,"  41.  The  only 
daughter  was  called  iirLKk-npos,  wrongly  translated  heiress;  it  signifies 
the  daughter  who  goes  with  the  inheritance.  In  fact,  the  daughter  was 
never  an  heiress. 

2  *'Laws  of  Manu,"  IX.  127,  136.     "Vasishta,"  XVII.  16. 

^  I  sails,  VII. 

*  He  was  not  called  the  grandson ;    they  gave  him  the  particular  name 

of  dvyarpldovs. 

s  Isceus,  VIII.  31 ;  X.  12.     Demosthenes, '/in  Steph.,"  II.  20. 


Chap.  XXX,  §  2.]  SUCCESSION  547 

3.    Of  the  Collateral  Succession 

A  man  died  without  children;  to  know  who  the  heir  of  his 
estate  was,  we  have  only  to  learn  who  was  qualified  to  continue 
his  worship. 

Now,  the  domestic  religion  was  transmitted  by  blood  from  male 
to  male.  The  descent  in  the  male  line  alone  established  between 
two  men  the  religious  relation  which  permitted  one  to  continue  the 
worship  of  the  other.  What  is  called  relationship,  as  we  have  seen 
above,  was  nothing  more  than  the  expression  of  this  relation.  One 
was  a  relative  because  he  had  the  same  worship,  the  same  original 
sacred  fire,  the  same  ancestors.  But  one  was  not  a  relative  because 
he  had  the  same  mother ;  religion  did  not  admit  of  kinship  through 
women.  The  children  of  two  sisters,  or  of  a  sister  and  a  brother, 
had^no  bond  of  kinship  betw^een  them,  and  belonged  neither  to  the 
same  domestic  religion  nor  to  the  same  family. 

These  principles  regulated  the  order  of  succession.  If  a  man, 
having  lost  his  son  and  his  daughter,  left  only  grandchildren  after 
him,  his  son's  son  inherited,  but  not  his  daughter's  son.  In  default 
of  descendants,  he  had  as  an  heir  his  brother,  not  his  sister,  the  son 
of  his  brother,  not  the  son  of  his  sister.  In  default  of  brothers  and 
nephews,  it  was  necessary  to  go  up  in  the  series  of  ascendants  of 
the  deceased,  always  in  the  male  line,  until  a  branch  of  the  family 
was  found  that  was  detached  through  a  male ;  then  to  re-descend 
in  this  branch  from  male  to  male,  until  a  living  man  was  found ; 
this  was  the  heir. 

These  rules  were  in  force  equally  among  the  Hindus,  the  Greeks, 
and  the  Romans.  In  India  "the  inheritance  belongs  to  the  nearest 
sapinda;  in  default  of  a  sapinda,  to  the  samanodaca."  ^  Now,  we 
have  seen  that  the  relationship  w^hich  these  two  words  expressed 
was  the  religious  relationship,  or  the  relationship  through  the  males, 
and  corresponded  to  the  Roman  agnation. 

Here,  again,  is  the  law  of  Athens :  "  If  a  man  dies  without  chil- 
dren, the  heir  is  the  brother  of  the  deceased,  provided  he  is  a  con- 
sanguineous brother;  in  default  of  him,  the  son  of  the  brother; 
for  the  succession  always  passes  to  the  males,  and  to  the  descendants 
of  males.'"  -  They  still  cited  this  old  law  in  the  time  of  Demos- 
thenes, although  it  had  already  been  modified,  and  they  had  com- 
menced at  this  epoch  to  admit  relationship  through  women. 

In  the  same  way,  the  Twelve  Tables  ordained  that,  if  a  man  died 

1  "Laws  of  Manu,"  IX.  186,  187. 

^  Demosthenes,  "in  Maeart. "  ;   ^'in  Leoeh."     Isoeus,  VII.  20. 


548  THINGS  [Part  III. 

without  his  heir,  the  succession  belonged  to  the  nearest  agnate. 
Now,  we  have  seen  that  one  was  never  an  agnate  through  females. 
The  ancient  Roman  law  also  specified  that  the  nephew  inherited 
from  the  patruus,  —  that  is  to  say,  from  his  father's  brother,  — 
and  did  not  inherit  from  the  avunculus,  his  mother's  brother.^ 

By  returning  to  the  table  which  we  have  traced  of  the  family 
of  the  Scipios,  it  will  be  seen  that,  Scipio  iEmilianus,  having  died 
without  children,  his  estate  could  not  pass  either  to  Cornelia,  his 
aunt,  or  to  C.  Gracchus,  who,  according  to  our  modern  ideas, 
was  his  cousin-german,  but  to  Scipio  Asiaticus,  who  was  really 
his  nearest  of  kin. 

In  the  time  of  Justinian,  the  legislator  no  longer  understood  these 
old  laws ;  they  appeared  unjust  to  him,  and  he  complained  of  the 
excessive  rigor  of  the  laws  of  the  Twelve  Tables,  "which  always 
accorded  the  preference  to  the  masculine  posterity,  and  excluded 
from  the  inheritance  those  who  were  related  to  the  deceased  only 
through  females."  ^  Unjust  laws,  if  you  will,  for  they  made  no 
account  of  natural  affection  ;  but  singularly  logical  laws,  for  setting 
o.ut  from  the  principle  that  the  inheritance  was  attached  to  the 
worship,  they  excluded  from  the  inheritance  those  whom  this  re- 
ligion did  not  authorize  to  continue  the  worship. 

4.   Efeds  of  Emancipation  and  Adoption 

We  have  already  seen  that  emancipation  and  adoption  produced 
a  change  in  a  man's  worship.  The  first  separated  him  from  the 
paternal  worship,  the  second  initiated  him  into  the  religion  of 
another  family.  Here  also  the  ancient  law  conformed  to  the  rules 
of  religion.  The  son  who  had  been  excluded  from  the  paternal 
worship  by  emancipation  was  also  excluded  from  the  inheritance. 
On  the  other  hand,  the  stranger  who  had  been  associated  in  the 
worship  of  a  family  by  adoption  became  a  son  there ;  he  continued 
its  worship,  and  inherited  the  estate.  In  both  cases  ancient  law 
made  more  account  of  the  religious  tie  than  of  the  tie  of  birth. 

As  it  was  contrary  to  religion  that  one  man  should  have  two  do- 
mestic worships,  so  he  could  not  inherit  from  two  families.  Besides, 
the  adopted  son,  who  inherited  of  the  adopting  family,  did  not 
inherit  from  his  natural  family.  Athenian  law  was  very  explicit 
on  this  point.  The  orations  of  Attic  orators  often  show  us  men 
who  have  been  adopted  into  a  family,  and  who  wished  to  inherit 
in  the  one  in  which  they  were  born ;  but  the  law  was  against  them. 

1  "Institutes,"  III.  2,  4.  -'  Ihid.,  III.  3. 


Chap.  XXX,  §  2.]  SUCCESSION  549 

The  adopted  son  could  not  inherit  from  his  own  family  unless  he 
re-entered  it ;  he  could  not  re-enter  it  except  by  renouncing  the 
adopting  family;  and  he  could  leave  this  latter  only  on  two  con- 
ditions :  the  one  was,  that  he  abandoned  the  patrimony  of  this 
family  ;  the  other  was,  that  the  domestic  worship,  for  the  continua- 
tion of  which  he  had  been  adopted,  did  not  cease  by  his  abandon- 
ment ;  and,  to  make  this  certain,  it  was  necessary  for  him  to  leave 
this  family  a  son,  who  should  replace  him.  This  son  took  charge  of 
the  worship,  and  inherited  the  estate ;  the  father  could  then  return 
to  the  family  of  his  birth,  and  inherit  its  property.  But  this  father 
and  son  could  no  longer  inherit  from  each  other ;  they  were  not  of 
the  same  family,  they  were  not  of  kin.^ 

We  can  easily  see  what  was  the  idea  of  the  old  legislator  when  he 
established  these  precise  rules.  He  did  not  suppose  it  possible 
that  two  estates  could  fall  to  the  same  heir,  because  two  domestic 
worships  could  not  be  kept  up  by  the  same  person. 

5.    Wills  icere  not  known  originally 

The  right  of  willing — that  is  to  say,  of  disposing  of  one's  prop- 
erty after  death,  in  order  to  make  it  pass  to  other  than  natural 
heirs  —  was  in  opposition  to  the  religious  creed  that  was  at  the 
foundation  of  the  law  of  property  and  the  law  of  succession.  The 
property  being  inherent  in  the  worship,  and  the  worship  being 
hereditary,  could  one  think  of  a  will  ?  Besides,  property  did  not 
belong  to  the  individual,  but  to  the  family ;  for  man  had  not  ac- 
quired it  by  the  right  of  labor,  but  through  the  domestic  worship. 
Attached  to  the  family,  it  was  transmitted  from  the  dead  to  the 
living,  not  according  to  the  will  and  choice  of  the  dead,  but  by 
virtue  of  superior  rules  which  religion  had  established. 

The  will  was  not  known  in  ancient  Hindu  law.  Athenian  legisla- 
tion, up  to  Solon's  time,  forbade  it  absolutely,  and  Solon  himself 
permitted  it  only  to  those  who  left  no  children.-  Wills  were  for  a 
long  time  forbidden  or  unknown  at  Sparta,  and  were  authorized 
only  after  the  Peloponnesian  war.^  Aristotle  speaks  of  a  time  when 
the  case  was  the  same  at  Corinth  and  at  Thebes.^  It  is  certain 
that  the  power  of  transmitting  one's  property  arbitrarily  by  will 
was  not  recognized  as  a  natural  right ;   the  constant  principle  of 

'  Iscrus,  X.  Demosthenes,  passim.  Gains,  III.  2.  "Institutes,"  III. 
1,  2.  It  is  hardly  necessary  to  state  that  these  rules  were  modified  in 
the  pretorian  laws. 

2  Plutarch,  ^' Solon,"  21.  « Id.,  ^'Agis,"  5. 

*  Aristotle,  "Polit.,"  II.  3,  4. 


550  THINGS  [Part  III. 

the  ancient  ages  was,  that  all  property  should  remain  in  the  family 
to  which  religion  had  attached  it. 

Plato,  in  his  treatise  on  the  Laws,  which  is  largely  a  commentary 
on  the  Athenian  laws,  explains  very  clearly  the  thought  of  ancient 
legislators.  He  supposes  that  a  man  on  his  death-bed  demands  the 
power  to  make  a  will,  and  that  he  cries,  "O  gods,  is  it  not  very 
hard  that  I  am  not  able  to  dispose  of  my  propert}'  as  I  may  choose, 
and  in  favor  of  any  one  to  whom  I  please  to  give  it,  leaving  more 
to  this  one,  less  to  that  one,  according  to  the  attachment  they 
have  shown  for  me?"  But  the  legislator  replies  to  this  man, 
"Thou  who  canst  not  promise  thyself  a  single  day,  thou  who  art 
only  a  pilgrim  here  below,  does  it  belong  to  thee  to  decide  such 
affairs  ?  Thou  art  the  master  neither  of  thy  property  nor  of  thy- 
self :  thou  and  thy  estate,  all  these  things,  belong  to  thy  family ; 
that  is  to  say,  to  thy  ancestors  and  to  thy  posterity."  ^ 

For  us  the  ancient  laws  of  Rome  are  very  obscure ;  they  were 
obscure  even  to  Cicero.  What  we  know  reaches  little  farther 
back  than  the  Twelve  Tables,  which  certainly  are  not  the  primitive 
legislation  of  Rome ;  and  of  these  only  fragments  remain.  This 
code  authorizes  the  will ;  yet  the  fragment  relating  to  the  subject 
is  too  short,  and  too  evidently  incomplete  to  enable  us  to  flatter 
ourselves  that  we  know  the  exact  provisions  of  the  legislators  in 
this  matter.  When  they  granted  the  power  of  devising  property, 
we  do  not  know  what  reserve  and  what  conditions  they  placed 
upon  it.2  We  have  no  legal  text,  earlier  than  the  Twelve  Tables, 
that  either  forbids  or  permits  a  will ;  but  the  language  preserved 
traces  of  a  time  when  wills  were  not  known ;  for  it  called  the  son 
the  self-successor  and  necessary  —  heres  suits  et  necessarius.  This 
formula,  which  Gains  and  Justinian  still  employed,  but  which 
was  no  longer  in  accord  with  the  legislation  of  their  time,  came, 
without  doubt,  from  a  distant  epoch,  when  the  son  could  not  be 
disinherited  or  refuse  the  heritage.  The  father  had  not  then 
the  free  disposition  of  his  fortune.  In  default  of  sons,  and  if  the 
deceased  had  only  collateral  relatives,  the  will  was  not  absolutely 
unknown,  but  was  not  easily  made  valid.  Important  formalities 
were  necessary.  First,  secrecy  was  not  allowed  to  the  testator 
during  life;  the  man  who  disinherited  his  family,  and  violated 
the  law  that  religion  had  established,  had  to  do  this  publicly,  in 
broad  daylight,  and  take  upon  himself,  during  his  lifetime,  all  the 

1  Plato,  "Laws,"  XI. 

2  "  Uti  legassit,  ita  jus  esto."  If  we  had  of  Solon's  law  only  the  words 
diddea-dai  Sttws  Slv  id^Xr},  we  should  also  suppose  that  the  will  was  permitted 
in  all  possible  cases ;   but  the  law  adds,  a^  /x??  TraiSts  cScrt. 


Chap.  XXX,  §  2.]  SUCCESSION  551 

odium  attached  to  such  an  act.  This  was  not  all ;  it  was  also 
necessary  that  the  will  of  the  testator  should  receive  the  approba- 
tion of  the  sovereign  authority  —  that  is  to  say,  of  the  people 
assembled  by  curies,  under  the  presidency  of  the  pontiff.^  We 
must  not  imagine  that  this  was  an  empty  formality,  particularly^ 
in  the  early  ages.  These  comitia  by  curies  were  the  most  solemn 
assemblies  of  the  Roman  city ;  and  it  would  be  puerile  to  say  that 
they  convoked  the  people  under  the  presidency  of  the  religious 
chief,  to  act  simply  as  witnesses  at  the  reading  of  a  will.  We  may 
suppose  that  the  people  voted,  and  we  shall-  see,  on  reflection, 
that  this  was  absolutely  necessary.  There  was,  in  fact,  a  general 
law  which  regulated  the  order  of  succession  in  a  rigorous  manner ; 
to  modify  this  order  in  any  particular,  another  law  was  necessary. 
This  exceptional  law  was  the  will.  The  right  of  a  man  to  devise 
by  will  was  not,  therefore,  fully  accorded,  and  could  not  be,  so 
long  as  this  society  remained  under  the  empire  of  the  old  religion. 
In  the  belief  of  these  ancient  ages,  the  living  man  was  only  the 
representative,  for  a  few  years,  of  a  constant  and  immortal  being 
—  the  family.  He  held  the  worship  and  the  property  only  in 
trust ;  his  right  to  them  ceased  with  his  life. 

6.    The  Right  of  Primogeniture 

We  must  transport  ourselves  beyond  the  time  of  which  history 
has  preserved  the  recollection,  to  those  distant  ages  during  which 
domestic  institutions  were  established,  and  social  institutions  were 
prepared.  Of  this  epoch  there  does  not  remain,  nor  can  there 
remain,  any  written  monument ;  but  the  laws  which  then  governed 
men  have  left  some  traces  in  the  legislation  of  succeeding  times. 

In  these  distant  days  we  distinguish  one  institution  which  must 
have  survived  a  long  time,  which  had  a  considerable  influence 
upon  the  future  constitution  of  societies,  and  without  which 
this  constitution  could  not  be  explained.  This  is  the  right  of 
primogeniture. 

The  old  religion  established  a  difference  between  the  older  and 
the  younger  son.  "The  oldest,"  said  the  ancient  Aryas,  "was 
begotten  for  the  accomplishment  of  the  duty  due  the  ancestors ; 
the  others  are  the  fruit  of  love."  In  virtue  of  this  original  superior- 
ity, the  oldest  had  the  privilege,  after  the  death  of  the  father,  of 

1  Ulpian,  XX.  2.  Gains,  I,  102,  119.  Aldus  Gellius,  XV.  27.  The 
testament  cnlatis  comitiis  was  doubtless  the  oldest  in  use.  It  was  no 
longer  known  in  Cicero's  time.     ("De  Orat.,"  I.  53.) 


552  THINGS  [Part  III. 

presiding  at  all  the  ceremonies  of  the  domestic  worship ;  he  it  was 
who  offered  the  funeral  repast,  and  pronounced  the  formulas  of 
prayer ;  "  for  the  right  of  pronouncing  the  prayers  belongs  to  that 
son  who  came  into  the  world  first."  The  oldest  was,  therefore, 
heir  to  the  hymns,  the  continuator  of  the  worship,  the  religious 
chief  of  the  family.  From  this  creed  flowed  a  rule  of  law :  the 
oldest  alone  inherited  property.  Thus  says  an  ancient  passage, 
which  the  last  editor  of  the  Laws  of  INIanu  still  inserted  in  the  code  : 
"The  oldest  takes  possession  of  the  whole  patrimony,  and  the  other 
brothers  live  under  his  authority  as  if  they  were  under  that  of  their 
father.  The  oldest  son  performs  the  duties  towards  the  ancestors ; 
he  ought,  therefore,  to  have  all."  ^ 

Greek  law  is  derived  from  the  same  religious  beliefs  as  Hindu 
law;  it  is  not  astonishing,  then,  to  find  there  also  the  right  of 
primogeniture.  Sparta  preserved  it  longer  than  other  Greek  cities 
because  the  Spartans  were  longer  faithful  to  old  institutions ; 
among  them  the  patrimony  was  indivisible,  and  the  younger 
brothers  had  no  part  of  it.^  It  was  the  same  with  many  of  the 
ancient  codes  that  Aristotle  had  studied.  He  informs  us,  indeed, 
that  the  Theban  code  prescribed  absolutely  that  the  number  of 
lots  of  land  should  remain  unchangeable,  which  certainly  excluded 
the  division  among  brothers.  An  ancient  law  of  Corinth  also  pro- 
vided that  the  number  of  families  should  remain  invariable,  which 
could  only  be  the  case  where  the  right  of  the  oldest  prevented 
families  from  becoming  dismembered  in  each  generation.^ 

Among  the  Athenians  we  need  not  expect  to  find  this  old  institu- 
tion in  full  vigor  in  the  time  of  Demosthenes ;  but  there  still 
existed  at  this  epoch  what  they  called  the  privilege  of  the  elder.^ 
It  consisted  in  retaining,  above  his  proportion,  the  paternal  dwell- 
ing —  an  advantage  which  was  materially  considerable,  and 
which  was  still  more  considerable  in  a  religious  point  of  view ; 
for  the  paternal  house  contained  the  ancient  hearth  of  the  family. 
While  the  younger  sons,  in  the  time  of  Demosthenes,  left  home  to 
light  new  fires,  the  oldest,  the  true  heir,  remained  in  possession  of 
the  paternal  hearth  and  of  the  tomb  of  his  ancestors.  He  alone 
also  preserved  the  family  name.^  These  were  the  vestiges  of  a 
time  when  he  alone  received  the  patrimony. 

1  "Laws  of  Manu,"  IX.  105-107,  126.  This  ancient  rule  was  modified 
as  the  old  religion  became  enfeebled.  Even  in  the  code  of  Manu  we  find 
articles  that  authorize  a  division  of  the  inheritance. 

2  ^'Fragments  of  the  Greek  Historians,"  DidoVs  Coll.,  t.  II.  p.  211. 
^Aristotle,  "Polit.,"  II.  9;    II.  3. 

<  Yipea^da,  Demosthenes,  "Pro  Phorm.,"  34. 
5  Demosthenes,  "in  Boeot.  de  nomine." 


Chap.  XXX,  §  3.]  SUCCESSION  553 

We  may  remark,  that  the  ineciiiahty  of  the  law  of  primogeniture, 
besides  the  fact  that  it  did  not  strike  the  minds  of  the  ancients,  over 
whom  rehgion  was  all-powerful,  was  corrected  by  several  of  their 
customs.  Sometimes  the  younger  son  was  adopted  into  a  family, 
and  inherited  property  there ;  sometimes  he  married  an  only 
daughter ;  sometimes,  in  fine,  he  received  some  extinct  family's  lot 
of  land.  When  all  these  resources  failed,  younger  sons  were  sent 
out  to  join  a  colony. 

As  to  Rome,  we  find  no  law  that  relates  to  the  right  of  primo- 
geniture ;  but  we  are  not  to  conclude  from  this  that  the  right  was 
unknown  in  ancient  Italy.  It  might  have  disappeared,  and  even 
its  traces  have  been  effaced.  What  leads  us  to  believe  that  before 
the  ages  known  to  us  it  was  in  force  is,  that  the  existence  of  the 
Roman  and  Sabine  gens  cannot  be  explained  without  it.  How 
could  a  family  reach  the  number  of  several  thousand  free  persons, 
like  the  Claudian  family,  or  several  hundred  combatants,  all 
patricians,  like  the  Fabian  family,  if  the  right  of  primogeniture 
had  not  maintained  its  unity  during  a  long  series  of  generations, 
and  had  not  increased  its  numbers  from  age  to  age  by  preventing 
its  dismemberment  ?  This  ancient  right  of  primogeniture  is  proved 
by  its  consequences,  and,  so  to  speak,  by  its  works. ^ 

Section  3 

EARLY   HISTORY    OF   TESTAMENTARY   SUCCESSION  2 

It  is  not  difficult  to  point  out  the  extreme  difference  of  the 
conclusions  forced  on  us  by  the  historical  treatment  of  the  subject, 
from  those  to  which  we  are  conducted  when,  without  the  help 
of  history,  we  merely  strive  to  analyse  our  prima-facie  impressions. 
I  suppose  there  is  nobody  who,  starting  from  the  popular  or  even 
the  legal  conception  of  a  Will,  would  not  imagine  that  certain 
qualities  are  necessarily  attached  to  it.  He  would  say,  for  ex- 
ample, that  a  Will  necessarily  takes  effect  at  death  only  —  that 
it  is  secret,  not  known  as  a  matter  of  course  to  persons  taking 

'  The  old  Latin  language,  moreover,  has  preserved  a  vestige  which, 
feeble  as  it  is,  deserves  to  be  pointed  out.  A  lot  of  land,  the  domain  of  a 
family,  was  called  sors;  sors  patrimoniiim  significat,  says  Fentus.  The 
word  consortes  was  applied  then  to  those  who  had  among  them  only  a 
single  lot  of  land,  and  lived  on  the  same  domain.  Now,  the  old  language 
designated  by  this  word  brothers,  and  even  those  quite  distantly  related. 
This  bears  witness  to  a  time  when  the  patrimony  and  the  family  were 
indivisible.  (Festiis,  v.  "Sors."  Cicero,  "in  Verrem,"  II.  323.  Livy, 
XLI.  27.      Vdleius.  I.  10.     Lucretius,  III.  722;    VI.  1280.) 

^  [By  Sir  Henry  S.  Maine.  Reprinted  from  "Ancient  Law,"  by  per- 
mission of  Henry  Holt  and  Company,  New  York.] 


554  THINGS  [Part  III. 

interests  under  its  provisions  —  that  it  is  revocable,  i.e.  always 
capable  of  being  superseded  b}'  a  new  act  of  testation.  Yet  I 
shall  be  able  to  show  that  there  was  a  time  when  none  of  these 
characteristics  belonged  to  a  Will.  The  Testaments  from  which 
our  Wills  are  directly  descended  at  first  took  effect  immediately 
on  their  execution  ;  they  were  not  secret ;  they  were  not  reA'ocable. 
Few  legal  agencies  are,  in  fact,  the  fruit  of  more  complex  historical 
agencies  than  that  by  which  a  man's  written  intentions  control 
the  posthumous  disposition  of  his  goods.  Testaments  very 
slowly  and  gradually  gathered  round  them  the  qualities  I  have 
mentioned ;  and  they  did  this  from  causes  and  under  pressure 
of  events  which  may  be  called  casual,  or  which  at  any  rate  have 
no  interest  for  us  at  present,  except  so  far  as  they  have  affected 
the  history  of  law. 


The  conception  of  a  Will  or  Testament  cannot  be  considered 
by  itself.  It  is  a  member,  and  not  the  first,  of  a  series  of  con- 
ceptions. In  itself  a  Will  is  simply  the  instrument  by  which  the 
intention  of  the  testator  is  declared.  It  must  be  clear,  I  think, 
that  before  such  an  instrument  takes  its  turn  for  discussion,  there 
are  several  preliminary  points  to  be  examined  —  as  for  example, 
what  is  it,  what  sort  of  right  or  interest,  which  passes  from  a  dead 
man  on  his  decease?  to  whom  and  in  what  form  does  it  pass? 
and  how  came  it  that  the  dead  were  allowed  to  control  the  post- 
humous disposition  of  their  property?  Thrown  into  technical 
language,  the  dependence  of  the  various  conceptions  which  con- 
tribute to  the  notion  of  a  Will  is  thus  expressed.  A  Will  or  Testa- 
ment is  an  instrument  by  which  the  devolution  of  an  inheritance 
is  prescribed.  Inheritance  is  a  form  of  universal  succession.  A 
universal  succession  is  a  succession  to  a  universitas  juris,  or  uni- 
versity of  rights  and  duties.  Inverting  this  order  we  have  therefore 
to  inquire  what  is  a  universitas  juris;  what  is  a  universal  succes- 
sion ;  what  is  the  form  of  universal  succession  which  is  called 
an  inheritance?  And  there  are  also  two  further  questions  in- 
dependent to  some  extent  of  the  points  I  have  mooted,  but  de- 
manding solution  before  the  subject  of  Wills  can  be  exhausted. 
These  are,  how  came  an  inheritance  to  be  controlled  in  any  case 
by  the  testator's  volition,  and  what  is  the  nature  of  the  instru- 
ment by  w^hich  it  came  to  be  controlled  ? 

The  first  question  relates  to  the  universitas  juris;  that  is  a 
university  (or  bundle)  of  rights  and  duties.     A  universitas  juris 


Chap.  XXX,  §  3.]  SUCCESSION  555 

is  a  collection  of  rights  and  duties  united  by  the  single  circum- 
stance of  their  having  belonged  at  one  time  to  some  one  person. 
It  is,  as  it  were,  the  legal  clothing  of  some  given  individual.  It 
is  not  formed  by  grouping  together  any  rights  and  any  duties.  It 
can  only  be  constituted  by  taking  all  the  rights  and  all  the  duties 
of  a  particular  person.  The  tie  which  so  connects  a  number  of 
rights  of  property,  rights  of  way,  rights  to  legacies,  duties  of 
specific  performance,  debts,  obligations,  to  compensate  wrongs  — 
which  so  connects  all  these  legal  privileges  and  duties  together 
as  to  constitute  them  a  unimrsitas  juris,  is  the  fact  of  their  having 
attached  to  some  individual  capable  of  exercising  them.  Without 
this /ac^  there  is  no  university  of  rights  and  duties.  The  expression 
universitas  juris  is  not  classical,  but  for  the  notion  jurisprudence 
is  exclusively  indebted  to  Roman  law ;  nor  is  it  at  all  difficult  to 
seize.  We  must  endeavour  to  collect  under  one  conception  the 
whole  set  of  legal  relations  in  which  each  one  of  us  stands  to  the 
rest  of  the  world.  These,  whatever  be  their  character  and  com- 
position, make  up  together  a  unimrsitas  juris;  and  there  is  but 
little  danger  of  mistake  in  forming  the  notion,  if  we  are  only 
careful  to  remember  that  duties  enter  into  it  quite  as  much  as 
rights.  Our  duties  may  overbalance  our  rights.  A  man  ma}^ 
owe  more  than  he  is  worth,  and  therefore  if  a  money  value  is  set 
on  his  collective  legal  relations  he  may  be  what  is  called  insolvent. 
But  for  all  that  the  entire  group  of  rights  and  duties  which  centres 
in  him  is  not  the  less  a  *'  juris  universitas." 

We  come  next  to  a  "  universal  succession."  A  universal  suc- 
cession is  a  succession  to  a  universitas  juris.  It  occurs  when 
one  man  is  invested  with  the  legal  clothing  of  another,  becoming 
at  the  same  moment  subject  to  all  his  liabilities  and  entitled  to 
all  his  rights.  In  order  that  the  universal  succession  may  be  true 
and  perfect,  the  devolution  must  take  place  uno  ictu,  as  the  jurists 
phrase  it.  It  is  of  course  possible  to  conceive  one  man  acquiring 
the  whole  of  the  rights  and  duties  of  another  at  different  periods, 
as  for  example  by  successive  purchases ;  or  he  might  acquire  them 
in  different  capacities,  part  as  heir,  part  as  purchaser,  part  as 
legatee.  But  though  the  group  of  rights  and  duties  thus  made  up 
should  in  fact  amount  to  the  whole  legal  personality  of  a  particular 
individual,  the  acquisition  would  not  be  a  universal  succession. 
In  order  that  there  may  be  a  true  universal  succession,  the  trans- 
mission must  be  such  as  to  pass  the  whole  aggregate  of  rights  and 
duties  at  the  same  moment  and  in  virtue  of  the  same  legal  capacity 
in  the  recipient.     The  notion  of  a  universal  succession,  like  that 


556  THINGS  [Part  III. 

of  a  "  juris  universitas,"  is  permanent  in  jurisprudence,  though 
in  the  English  legal  system  it  is  obscured  bj'  the  great  variety  of 
capacities  in  which  rights  are  acquired,  and,  above  all,  by  the 
distinction  between  the  two  great  provinces  of  English  property, 
"realty"  and  "personalty."  The  succession  of  an  assignee  in 
bankruptcy  to  the  entire  property  of  the  bankrupt  is,  however,  a 
universal  succession,  though,  as  the  assignee  only  pays  debts  to 
the  extent  of  the  assets,  this  is  only  a  modified  form  of  the  primary 
notion.  Were  it  common  among  us  for  persons  to  take  assign- 
ments of  all  a  man's  property  on  condition  of  paying  all  his  debts, 
such  transfers  would  exactly  resemble  the  universal  successions 
known  to  the  oldest  Roman  Law.  When  a  Roman  citizen  ad- 
rogated  a  son,  i.e.  took  a  man,  not  already  under  Patria  Potestas, 
as  his  adoptive  child,  he  succeeded  universally  to  the  adoptive 
child's  estate,  i.e.  he  took  all  the  property  and  became  liable  for 
all  the  obligations.  Several  other  forms  of  universal  succession 
appear  in  the  primitive  Roman  Law,  but  infinitely  the  most 
important  and  the  most  durable  of  all  was  that  one  with  which 
we  are  more  immediately  concerned,  Hsereditas  or  Inheritance. 
Inheritance  w^as  a  universal  succession,  occurring  at  a  death.  The 
universal  successor  was  Hseres  or  Heir.  He  stepped  at  once  into 
all  the  rights  and  all  the  duties  of  the  dead  man.  He  was  instantly 
clothed  with  his  entire  legal  person,  and  I  need  scarcely  add  that 
the  special  character  of  the  Hseres  remained  the  same,  whether 
he  was  named  by  a  Will  or  whether  he  took  on  an  intestacy.  The 
term  Hseres  is  no  more  emphatically  used  of  the  Intestate  than  of 
the  Testamentary  Heir,  for  the  manner  in  which  a  man  became 
Hseres  had  nothing  to  do  with  the  legal  character  he  sustained. 
The  dead  man's  universal  successor,  however  he  became  so,  whether 
by  Will  or  by  Intestacy,  was  his  Heir.  But  the  Heir  was  not 
necessarily  a  single  person.  A  group  of  persons,  considered  in 
law  as  a  single  unit,  might  succeed  as  co-heirs  to  the  Inheritance. 

Let  me  now  quote  the  usual  Roman  definition  of  an  Inheritance. 
The  reader  will  be  in  a  position  to  appreciate  the  full  force  of  the 
separate  terms.  Hoereditas  est  successio  in  universwn  jus  quod 
defimctus  habuit  ("  an  inheritance  is  a  succession  to  the  entire 
legal  position  of  a  deceased  man").  The  notion  was  that,  though 
the  phj^sical  person  of  the  deceased  had  perished,  his  legal  per- 
sonality survived  and  descended  unimpaired  on  his  Heir  or  Co- 
heirs, in  whom  his  identity  (so  far  as  the  law  was  concerned)  was 
continued.  Our  own  law,  in  constituting  the  Executor  or  Ad- 
ministrator the  representative  of  the  deceased  to  the  extent  of  his 


Chap.  XXX,  §  3.]  SUCCESSION  557 

personal  assets,  may  serve  as  an  illustration  of  the  theory  from 
which  it  emanated,  but,  although  it  illustrates,  it  does  not  explain 
it.  The  view  of  even  the  later  Roman  Law  required  a  closeness 
of  correspondence  between  the  position  of  the  deceased  and  of  his 
Heir  which  is  no  feature  of  an  English  representation;  and,  in 
the  primitive  jurisprudence  everything  turned  on  the  continuity 
of  succession.  Unless  provision  was  made  in  the  will  for  the 
instant  devolution  of  the  testator's  rights  and  duties  on  the  Heir 
or  Co-heirs,  the  testament  lost  all  its  effect. 

In  modern  Testamentary  jurisprudence,  as  in  the  later  Roman 
Law,  the  object  of  first  importance  is  the  execution  of  the  testator's 
intentions.  In  the  ancient  law  of  Rome  the  subject  of  corre- 
sponding carefulness  was  the  bestowal  of  the  L'niversal  Succession. 
One  of  these  rules  seems  to  our  e^^es  a  principle  dictated  by  common 
sense,  while  the  other  looks  very  much  like  an  idle  crotchet.  Yet 
that  without  the  second  of  them  the  first  would  never  have  come 
into  being,  is  as  certain  as  any  proposition  of  the  kind  can  be. 

In  order  to  solve  this  apparent  paradox,  and  to  bring  into  greater 
clearness  the  train  of  ideas  which  I  have  been  endeavouring  to 
indicate,  I  must  borrow  the  results  of  the  inquiry  which  was 
attempted  in  the  earlier  portion  of  the  preceding  chapter.  We 
saw  one  peculiarity  invariably  distinguishing  the  infancy  of 
society.  Men  are  regarded  and  treated,  not  as  individuals,  but 
always  as  members  of  a  particular  group.  Everybody  is  first  a 
citizen,  and  then,  as  a  citizen,  he  is  a  member  of  his  order  —  of 
an  aristocracy  or  a  democracy,  of  an  order  of  patricians  or  ple- 
beians ;  or,  in  those  societies  which  an  unhappy  fate  has  afflicted 
with  a  special  perversion  in  their  course  of  development,  of  a 
caste.  Next,  he  is  a  member  of  a  gens,  house,  or  clan ;  and  lastly, 
he  is  a  member  of  his  family.  This  last  was  the  narrowest  and 
most  personal  relation  in  which  he  stood ;  nor,  paradoxical  as  it 
may  seem,  was  he  ever  regarded  as  himself,  as  a  distinct  individual. 
His  individuality  was  swallowed  up  in  his  family.  I  repeat  the 
definition  of  a  primitive  society  given  before.  It  has  for  its  units, 
not  individuals,  but  groups  of  men  united  by  the  reality  or  the 
fiction  of  blood-relationship. 

It  is  in  the  peculiarities  of  an  undeveloped  society  that  we  seize 
the  first  trace  of  a  universal  succession.  Contrasted  with  the 
organisation  of  a  modern  state,  the  commonwealths  of  primitive 
times  may  be  fairly  described  as  consisting  of  a  number  of  little 
despotic  governments,  each  perfectly  distinct  from  the  rest,  each 
absolutely  controlled  by  the  prerogative  of  a  single  monarch. 


558  THINGS  [Part  III. 

But  though  the  Patriarch,  for  we  must  not  yet  call  him  the  Pater- 
familias, had  rights  thus  extensive,  it  is  impossible  to  doubt  that 
he  lay  under  an  equal  amplitude  of  obligations.  If  he  governed 
the  family,  it  was  for  its  behoof.  If  he  was  lord  of  its  possessions, 
he  held  them  as  trustee  for  his  children  and  kindred.  He  had  no 
privilege  or  position  distinct  from  that  conferred  on  him  by  his 
relation  to  the  petty  commonwealth  which  he  governed.  The 
Family,  in  fact,  was  a  Corporation ;  and  he  was  its  representative 
or,  we  might  almost  say,  its  Public  officer.  He  enjoyed  rights 
and  stood  under  duties,  but  the  rights  and  duties  were,  in  the 
contemplation  of  his  fellow-citizens  and  in  the  eye  of  the  law, 
quite  as  much  those  of  the  collective  body  as  his  own.  Let  us 
consider  for  a  moment,  the  effect  which  would  be  produced  by 
the  death  of  such  a  representative.  In  the  eye  of  the  law,  in  the 
view  of  the  civil  magistrate,  the  demise  of  the  domestic  authority 
would  be  a  perfectly  immaterial  event.  The  person  representing 
the  collective  body  of  the  family  and  primarily  responsible  to 
municipal  jurisdiction  would  bear  a  different  name;  and  that 
would  be  all.  The  rights  and  obligations  which  attached  to  the 
deceased  head  of  the  house  would  attach,  without  breach  of  con- 
tinuity to  his  successor ;  for,  in  point  of  fact,  they  would  be  the 
rights  and  obligations  of  the  family,  and  the  family  had  the  dis- 
tinctive characteristic  of  a  corporation  —  that  it  never  died. 
Creditors  would  have  the  same  remedies  against  the  new  chieftain 
as  against  the  old,  for  the  liability  being  that  of  the  still  existing 
family  would  be  absolutely  unchanged.  All  rights  available  to 
the  family  would  be  as  available  after  the  demise  of  the  headship 
as  before  it  —  except  that  the  corporation  would  be  obliged  —  if 
indeed  language  so  precise  and  technical  can  be  properly  used  of 
these  early  times  —  would  be  obliged  to  sue  under  a  slightly 
modified  name. 

The  history  of  jurisprudence  must  be  followed  in  its  whole 
course,  if  we  are  to  understand  how  gradually  and  tardily  society 
dissolved  itself  into  the  component  atoms  of  which  it  is  now  con- 
stituted —  by  what  insensible  gradations  the  relation  of  man  to 
man  substituted  itself  for  the  relation  of  the  individual  to  his 
family,  and  of  families  to  each  other.  The  point  now  to  be  at- 
tended to  is  that  even  when  the  revolution  had  apparently  quite 
accomplished  itself,  even  when  the  magistrate  had  in  great  measure 
assumed  the  place  of  the  Pater-familias,  and  the  civil  tribunal 
substituted  itself  for  the  domestic  forum,  nevertheless  the  whole 
scheme  of  rights  and  duties  administered  by  the  judicial  authori- 


Chap.  XXX,  §  3.]  SUCCESSION  559 

ties  remained  shaped  by  the  influence  of  the  obsolete  privileges 
and  coloured  in  every  part  by  their  reflection.  There  seems 
little  question  that  the  devolution  of  the  Universitas  Juris,  so 
strenuously  insisted  upon  by  the  Roman  Law  as  the  first  condition 
of  a  testamentary  or  intestate  succession,  was  a  feature  of  the 
older  form  of  society  which  men's  minds  have  been  unable  to 
dissociate  from  the  new,  though  with  that  newer  phase  it  had  no 
true  or  proper  connection.  It  seems,  in  truth,  that  the  prolonga- 
tion of  a  man's  legal  existence  in  his  heir,  or  in  a  group  of  co-heirs, 
is  neither  more  nor  less  than  a  characteristic  of  the  family  trans- 
ferred by  a  fiction  to  the  indimdual.  Succession  in  corporations 
is  necessarily  universal,  and  the  family  was  a  corporation.  Cor- 
porations never  die.  The  decease  of  individual  members  makes 
no  difi^erence  to  the  collective  existence  of  the  aggregate  body, 
and  does  not  in  any  way  affect  its  legal  incidents,  its  faculties  or 
liabilities.  Now  in  the  idea  of  a  Roman  universal  succession  all 
these  ciualities  of  a  corporation  seem  to  have  been  transferred  to 
the  individual  citizen.  His  physical  death  is  allowed  to  exercise 
no  efi"ect  on  the  legal  position  which  he  filled,  apparently  on  the 
principle  that  that  position  is  to  be  adjusted  as  closely  as  possible 
to  the  analogies  of  a  family,  which,  in  its  corporate  character, 
was  not  of  course  liable  to  physical  extinction. 


When  a  Roman  citizen  died  intestate  or  leaving  no  valid  Will, 
his  descendants  or  kindred  became  his  heirs  according  to  a  scale 
which  will  be  presently  described.  The  person  or  class  of  persons 
who  succeeded  did  not  simply  represent  the  deceased,  but,  in 
conformity  with  the  theory  just  delineated,  they  continued  his 
civil  life,  his  legal  existence.  The  same  results  followed  when 
the  order  of  succession  was  determined  by  a  Will,  but  the  theory 
of  the  identity  between  the  dead  man  and  his  heirs  was  certainly 
much  older  than  any  form  of  Testament  or  phase  of  Testamentary 
jurisprudence.  This  indeed  is  the  proper  moment  for  suggesting 
a  doubt  which  will  press  on  us  with  greater  force  the  further  we 
plumb  the  depths  of  this  subject  —  whether  icills  would  ever 
have  come  into  being  at  all  if  it  had  not  been  for  these  remarkable 
ideas  connected  with  universal  succession.  Testamentary  law 
is  the  application  of  a  principle  which  may  be  explained  on  a 
variety  of  philosophical  hypotheses  as  plausible  as  they  are  gratui- 
tous ;  it  is  interwoven  with  every  part  of  modern  society,  and  it  is 
defensible  on  the  broadest  grounds  of  general  expediency.     But 


560  THINGS  [Part  III. 

the  warning  can  never  be  too  often  repeated,  that  the  grand 
source  of  mistake  in  questions  of  jurisprudence  is  the  impression 
that  these  reasons  which  actuate  us  at  the  present  moment,  in 
the  maintenance  of  an  existing  institution,  have  necessarily  anything 
in  common  with  the  sentiment  in  which  the  institution  originated. 
It  is  certain  that,  in  the  old  Roman  Law  of  Inheritance,  the  notion 
of  a  will  or  testament  is  inextricably  mixed  up,  I  might  almost 
say  confounded,  with  the  theory  of  a  man's  posthumous  existence 
in  the  person  of  his  heir. 

The  conception  of  a  universal  succession,  firmly  as  it  has  taken 
root  in  jurisprudence,  has  not  occurred  spontaneously  to  the 
framers  of  every  body  of  laws.  Wherever  it  is  now  found,  it 
may  be  shown  to  have  descended  from  Roman  law;  and  with 
it  have  come  down  a  host  of  legal  rules  on  the  subject  of  Testa- 
ments and  Testamentary  gifts,  which  modern  practitioners  apply 
without  discerning  their  relation  to  the  parent  theory.  But,  in 
the  pure  Roman  jurisprudence,  the  principle  that  a  man  lives  on 
in  his  Heir  —  the  elimination,  if  we  may  so  speak,  of  the  fact  of 
death  —  is  too  obviously  for  mistake  the  centre  round  which  the 
whole  Law  of  Testamentary  and  Intestate  succession  is  circling. 
The  unflinching  sternness  of  the  Roman  law  in  enforcing  com- 
pliance with  the  governing  theory  would  in  itself  suggest  that  the 
theory  grew  out  of  something  in  the  primitive  constitution  of 
Roman  society ;  but  we  may  push  the  proof  a  good  way  beyond 
the  presumption.  It  happens  that  several  technical  expressions, 
dating  from  the  earliest  institution  of  wills  at  Rome,  have  been 
accidentally  preserved  to  us.  We  have  in  Gains  the  formula  of 
investiture  by  which  the  universal  successor  was  created.  We 
have  the  ancient  name  by  which  the  person  afterwards  called 
Heir  was  at  first  designated.  We  have  further  the  text  of  the 
celebrated  clause  in  the  Twelve  Tables  by  which  the  Testamentary 
power  was  expressly  recognised,  and  the  clauses  regulating  Intes- 
tate Succession  have  also  been  preserved.  All  these  archaic 
phrases  have  one  salient  peculiarity.  They  indicate  that  what 
passed  from  the  Testator  to  the  Heir  was  the  Family,  that  is, 
the  aggregate  of  rights  and  duties  contained  in  the  Patria  Potestas 
and  growing  out  of  it.  The  material  property  is  in  three  instances 
not  mentioned  at  all ;  in  two  others,  it  is  visibly  named  as  an 
adjunct  or  appendage  of  the  Family.  The  original  Will  or  Testa- 
ment was  therefore  an  instrument,  or  (for  it  was  probably  not  at 
first  in  writing)  a  proceeding,  by  which  the  devolution  of  the 
Family  was  regulated.     It  was  a  mode  of  declaring  who  was  to 


Chap.  XXX,  §  3.]  SUCCESSION  561 

have  the  chieftainship,  in  succession  to  the  Testator.  When 
Wills  are  understood  to  have  this  for  their  original  object,  we  see 
at  once  how  it  is  that  they  came  to  be  connected  with  one  of  the 
most  curious  relics  of  ancient  religion  and  law,  the  sacra,  or  Family 
Rites.  These  sacra  were  the  Roman  form  of  an  institution  which 
shows  itself  wherever  society  has  not  wholly  shaken  itself  free 
from  its  primitive  clothing.  They  are  the  sacrifices  and  cere- 
monies by  which  the  brotherhood  of  the  family  is  commemorated, 
the  pledge  and  the  witness  of  its  perpetuity.  Whatever  be  their 
nature  —  whether  it  be  true  or  not  that  in  all  cases  they  are  the 
worship  of  some  mythical  ancestor  —  they  are  everywhere  em- 
ployed to  attest  the  sacredness  of  the  family  relation ;  and  there- 
fore they  acquire  prominent  significance  and  importance,  when- 
ever the  continuous  existence  of  the  Family  is  endangered  by  a 
change  in  the  person  of  its  chief.  Accordingly,  we  hear  most 
about  them  in  connection  with  demises  of  domestic  sovereignty'. 
Among  the  Hindoos,  the  right  to  inherit  a  dead  man's  property 
is  exactly  co-extensive  with  the  duty  of  performing  his  obsequies. 
If  the  rites  are  not  properly  performed  or  not  performed  by  the 
proper  person,  no  relation  is  considered  as  established  between 
the  deceased  and  anybody  surviving  him ;  the  Law  of  Succession 
does  not  apply,  and  nobody  can  inherit  the  property.  Every 
great  event  in  the  life  of  a  Hindoo  seems  to  be  regarded  as  leading 
up  to  and  bearing  upon  these  solemnities.  If  he  marries,  it  is 
to  have  children  who  may  celebrate  them  after  his  death ;  if  he 
has  no  children,  he  lies  under  the  strongest  obligation  to  adopt 
them  from  another  family,  "with  a  view,"  writes  the  Hindoo 
doctor,  "to  the.  funeral  cake,  the  water,  and  the  solemn 
sacrifice."   .   .   . 

In  Hindoo  law  there  is  no  such  thing  as  a  true  Will.  The  place 
filled  by  Wills  is  occupied  by  Adoptions.  We  can  now  see  the 
relation  of  the  Testamentary  Power  to  the  Faculty  of  Adoption, 
and  the  reason  why  the  exercise  of  either  of  them  could  call  up  a 
peculiar  solicitude  for  the  performance  of  the  sacra.  Both  a 
Will  and  an  Adoption  threaten  a  distortion  of  the  ordinary  course 
of  Family  descent,  but  they  are  obviously  contri\'ances  for  pre- 
venting the  descent  being  wholly  interrupted,  when  there  is  no 
succession  of  kindred  to  carry  it  on.  Of  the  two  expedients 
Adoption,  the  factitious  creation  of  blood-relationship,  is  the 
only  one  which  has  suggested  itself  to  the  greater  part  of  archaic 
societies.  The  Hindoos  have  indeed  advanced  one  point  on 
what  was  doubtless  the  antique  practice,  by  allowing  the  widow 


562  THINGS  [Part  III. 

to  adopt  when  the  father  has  neglected  to  do  so,  and  there  are  in 
the  local  customs  of  Bengal  some  faint  traces  of  the  Testamentary 
powers.  But  to  the  Romans  belongs  pre-eminently  the  credit  of 
inventing  the  Will,  the  institution  which,  next  to  the  Contract, 
has  exercised  the  greatest  influence  in  transforming  human  society. 
We  must  be  careful  not  to  attribute  to  it  in  its  earliest  shape  the 
functions  wdiich  have  attended  it  in  more  recent  times.  It  was 
at  first,  not  a  mode  of  distributing  a  dead  man's  goods,  but  one 
among  several  ways  of  transferring  the  representation  of  the 
household  to  a  new  chief.  The  goods  descend  no  doubt  to  the 
Heir,  but  that  is  only  because  the  government  of  the  family  carries 
with  it  in  its  devolution  the  power  of  disposing  of  the  common 
stock.  We  are  very  far  as  yet  from  that  stage  in  the  history  of 
Wills  in  which  they  become  powerful  instruments  in  modifying 
society  through  the  stimulus  they  give  to  the  circulation  of  prop- 
erty and  the  plasticity  they  produce  in  proprietary  rights.  No 
such  consequences  as  these  appear  in  fact  to  have  been  associated 
with  the  Testamentary  power  even  by  the  latest  Roman  lawyers. 
It  will  be  found  that  Wills  were  never  looked  upon  in  the  Roman 
community  as  a  contrivance  for  parting  Property  and  the  Family, 
or  for  creating  a  variety  of  miscellaneous  interests,  but  rather 
as  a  means  of  making  a  better  provision  for  the  members  of  a 
household  than  could  be  secured  through  the  rules  of  Intestate 
succession.  We  may  suspect  indeed  that  the  associations  of  a 
Roman  with  the  practice  of  will-making  were  extremely  different 
from  those  familiar  to  us  nowadays.  The  habit  of  regarding 
Adoption  and  Testation  as  modes  of  continuing  the  Family  cannot 
but  have  had  something  to  do  with  the  singular  laxity  of  Roman 
notions  as  to  the  inheritance  of  sovereignty.  It  is  impossible 
not  to  see  that  the  succession  of  the  early  Roman  Emperors  to 
each  other  was  considered  reasonably  regular,  and  that,  in  spite 
of  all  that  had  occurred,  no  absurdity  attached  to  the  pretension 
of  such  Princes  as  Theodosius  or  Justinian  to  style  themselves 
Csesar  and  Augustus. 

When  the  phenomena  of  primitive  societies  emerge  into  light, 
it  seems  impossible  to  dispute  a  proposition  which  the  jurists  of 
the  seventeenth  century  considered  doubtful,  that  Intestate 
Inheritance  is  a  more  ancient  institution  than  Testamentary 
Succession.  As  soon  as  this  is  settled,  a  question  of  much  interest 
suggests  itself,  how  and  under  what  conditions  were  the  directions 
of  a  will  first  allowed  to  regulate  the  devolution  of  authority  over 
the  household,  and  consequently  the  posthumous  distribution  of 


Chap.  XXX,  §  3.]  SUCCESSION  563 

property.  The  difficulty  of  deciding  the  point  arises  from  the 
rarity  of  Testamentary  power  in  archaic  communities.  It  is 
doubtful  whether  a  true  power  of  testation  was  known  to  any 
original  society  except  the  Roman.  Rudimentary  forms  of  it 
occur  here  and  there,  but  most  of  them  are  not  exempt  from  the 
suspicion  of  a  Roman  origin.  The  Athenian  Will  was,  no  doubt, 
indigenous,  but  then,  as  will  appear  presently,  it  was  only  an 
inchoate  Testament.  As  to  the  Wills  which  are  sanctioned  by 
the  bodies  of  law  which  have  descended  to  us  as  the  codes  of  the 
barbarian  conquerors  of  imperial  Rome,  they  are  almost  certainly 
Roman.  The  most  penetrating  German  criticism  has  recently 
been  directed  to  these  leges  Barharorum,  the  great  object  of  in- 
vestigation being  to  detach  those  portions  of  each  system  which 
formed  the  customs  of  the  tribe  in  its  original  home  from  the 
adventitious  ingredients  which  were  borrowed  from  the  laws  of 
the  Romans.  In  the  course  of  this  process,  one  result  has  in- 
variably disclosed  itself,  that  the  ancient  nucleus  of  the  code  con- 
tains no  trace  of  a  Will.  Whatever  testamentary  law  exists, 
has  been  taken  from  Roman  jurisprudence.  Similarly,  the  rudi- 
mentary Testament  which  (as  I  am  informed)  the  Rabbinical 
Jewish  law  provides  for,  has  been  attributed  to  contact  with  the 
Romans.  The  only  form  of  Testament,  not  belonging  to  a  Roman 
or  Hellenic  society,  which  can  with  any  reason  be  supposed  in- 
digenous, is  that  recognised  by  the  usages  of  the  province  of 
Bengal ;  and  the  Testament  of  Bengal,  which  some  have  even 
supposed  to  be  an  invention  of  Anglo-Indian  lawyers,  is  at  most 
only  a  rudimentary  Will. 

The  evidence,  however,  such  as  it  is,  seems  to  point  to  the 
conclusion  that  Testaments  are  at  first  only  allowed  to  take  effect 
on  failure  of  the  persons  entitled  to  have  the  inheritance  by  right 
of  blood  genuine  or  fictitious.  Thus,  w^hen  Athenian  citizens 
were  empowered  for  the  first  time  by  the  Laws  of  Solon  to  execute 
Testaments,  they  were  forbidden  to  disinherit  their  direct  male 
descendants.  So,  too,  the  Will  of  Bengal  is  only  permitted  to 
govern  the  succession  so  far  as  it  is  consistent  with  certain  over- 
riding claims  of  the  family.  Again,  the  original  institutions  of 
the  Jews  having  provided  nowhere  for  the  privileges  of  Testator- 
ship,  the  latter  Rabbinical  jurisprudence,  which  pretends  to 
supply  the  casus  omissi  of  the  jNIosaic  law,  allows  the  power  of 
Testation  to  attach  when  all  the  kindred  entitled  under  the  Mosaic 
system  to  succeed  have  failed  or  are  undiscoverable.  The  limi- 
tations by  which  the  ancient  German  codes  hedge  in  the  testamen- 


564  THINGS  [Part  III. 

tary  jurisprudence  which  has  been  incorporated  with  them  are 
also  significant,  and  point  in  the  same  direction.  It  is  the  peculiar- 
ity of  most  of  these  German  laws,  in  the  only  shape  in  which  we 
know  them,  that,  besides  the  allod  or  domain  of  each  household, 
they  recognise  several  subordinate  kinds  or  orders  of  property, 
each  of  which  probably  represents  a  separate  transfusion  of  Roman 
principles  into  the  primitive  body  of  Teutonic  usage.  The  prim- 
itive German  or  allodial  property  is  strictly  reserved  to  the 
kindred.  Not  only  is  it  incapable  of  being  disposed  of  by  testa- 
ment, but  it  is  scarcely  capable  of  being  alienated  by  conveyance 
inter  vivos.  The  ancient  German  law,  like  the  Hindoo  jurispru- 
dence, makes  the  male  children  co-proprietors  with  their  father, 
and  the  endowment  of  the  family  cannot  be  parted  with  except 
by  the  consent  of  all  its  members.  But  the  other  sorts  of  property, 
of  more  modern  origin  and  lower  dignity  than  the  allodial  pos- 
sessions, are  much  more  easily  alienated  than  they,  and  follow 
much  more  lenient  rules  of  devolution.  Women  and  the  descen- 
dants of  women  succeed  to  them,  obviously  on  the  principle  that 
they  lie  outside  the  sacred  precinct  of  the  Agnatic  brotherhood. 
Now,  it  is  on  these  last  descriptions  of  property,  and  on  these 
only,  that  the  Testaments  borrowed  from  Rome  were  at  first 
allowed  to  operate. 

These  few  indications  may  serve  to  lend  additional  plausibility 
to  that  which  in  itself  appears  to  be  the  most  probable  explanation 
of  an  ascertained  fact  in  the  early  history  of  Roman  Wills.  We 
have  it  stated  on  abundant  authority  that  Testaments,  during 
the  primitive  period  of  the  Roman  State,  were  executed  in  the 
Comitia  Calata,  that  is,  in  the  Comitia  Curiata,  or  Parliament 
of  the  Patrician  Burghers  of  Rome,  when  assembled  for  Private 
Business.  This  mode  of  execution  has  been  the  source  of  the 
assertion,  handed  down  by  one  generation  of  civilians  to  another, 
that  every  Will  at  one  era  of  Roman  history  was  a  solemn  legis- 
lative enactment.  But  there  is  no  necessity  whatever  for  resort- 
ing to  an  explanation  which  has  the  defect  of  attributing  far  too 
much  precision  to  the  proceedings  of  the  ancient  assembly.  The 
proper  key  to  the  story  concerning  the  execution  of  Wills  in  the 
Comitia  Calata  must  no  doubt  be  sought  in  the  oldest  Roman 
law  of  intestate  succession.  The  canons  of  primitive  Roman 
jurisprudence  regulating  the  inheritance  of  relations  from  each 
other  were,  so  long  as  they  remained  unmodified  by  the  Edictal 
Law  of  the  Praetor,  to  the  following  effect :  —  First,  the  sui  or 
direct  descendants  who  had  never  been  emancipated  succeeded. 


Chap.  XXX,  §  3.]  SUCCESSION  565 

On  the  failure  of  the  sui,  the  Nearest  Agnate  came  into  their 
place,  that  is,  the  nearest  person  or  class  of  the  kindred  who  was 
or  might  have  been  under  the  same  Patria  Potestas  with  the 
deceased.  The  third  and  last  degree  came  next,  in  which  the 
inheritance  de\'olved  on  the  Gentiles,  that  is,  on  the  collective 
members  of  the  dead  man's  gens  or  House.  The  House,  I  have 
explained  already,  was  a  fictitious  extension  of  the  family,  consist- 
ing of  all  Roman  Patrician  citizens  who  bore  the  same  name, 
and  who  on  the  ground  of  bearing  the  same  name,  were  supposed 
to  be  descended  from  a  common  ancestor.  Now  the  Patrician 
Assembly  called  the  Comitia  Curiata  was  a  Legislature  in  which 
Gentes  or  Houses  were  exclusively  represented.  It  was  a  represen- 
tative assembly  of  the  Roman  people,  constituted  on  the  assump- 
tion that  the  constituent  unit  of  the  state  was  the  Gens.  This 
being  so,  the  inference  seems  inevitable,  that  the  cognisance  of 
Wills  b\^  the  Comitia  was  connected  with  the  rights  of  the  Gentiles, 
and  was  intended  to  secure  them  in  their  privilege  of  ultimate 
inheritance.  The  whole  apparent  anomaly  is  removed,  if  we  sup- 
pose that  a  Testament  could  only  be  made  when  the  Testator 
had  no  gentiles  discoverable,  or  when  they  waived  their  claims, 
and  that  every  Testament  was  submitted  to  the  General  Assembly 
of  the  Roman  Gentes,  in  order  that  those  aggrieved  by  its  dis- 
positions might  put  their  veto  upon  it  if  they  pleased,  or  b}-  allow- 
ing it  to  pass  might  be  presumed  to  have  renounced  their  reversion. 
It  is  possible  that  on  the  eve  of  the  publication  of  the  Twelve 
Tables  this  vetoing  power  may  have  been  greatly  curtailed  or 
only  occasionally  and  capriciously  exercised.  It  is  much  easier, 
however,  to  indicate  the  meaning  and  origin  of  the  jurisdiction 
confided  to  the  Comitia  Calata,  than  to  trace  its  gradual  develop- 
ment or  progressive  decay. 

The  Testament  to  which  the  pedigree  of  all  modern  Wills  may 
be  traced  is  not,  however,  the  Testament  executed  in  the  Calata 
Comitia,  but  another  Testament  designed  to  compete  with  it 
and  destined  to  supersede  it.  The  historical  importance  of  this 
early  Roman  Will,  and  the  light  it  casts  on  much  of  ancient  thought, 
will  excuse  me  for  describing  it  at  some  length. 

When  the  Testamentary  power  first  discloses  itself  to  us  in 
legal  history,  there  are  signs  that,  like  almost  all  the  great  Roman 
institutions,  it  was  the  subject  of  contention  between  the  Patri- 
cians and  the  Plebeians.  The  effect  of  the  political  maxim,  Plebs 
Gentem  non  liahet,  "a  Plebeian  cannot  be  a  member  of  a  house," 
was  entirely  to  exclude  the  Plebeians  from  the  Comitia  Curiata. 


566  THINGS  [Part  III. 

Some  critics  have  accordingly  supposed  that  a  Plebeian  could 
not  have  his  Will  read  or  recited  to  the  Patrician  Assembly,  and 
was  thus  deprived  of  Testamentary  privileges  altogether.  Others 
have  been  satisfied  to  point  out  the  hardships  of  having  to  submit 
a  proposed  Will  to  the  unfriendly  jurisdiction  of  an  assembly  in 
which  the  Testator  was  not  represented.  Whatever  be  the  true 
view,  a  form  of  Testament  came  into  use,  which  has  all  the  char- 
acteristics of  a  contrivance  intended  to  evade  some  distasteful 
obligation.  The  Will  in  question  was  a  conveyance  inter  vivos, 
a  complete  and  irrevocable  alienation  of  the  Testator's  family 
and  substance  to  the  person  whom  he  meant  to  be  his  heir.  The 
strict  rules  of  Roman  law  must  always  have  permitted  such  an 
alienation,  but  when  the  transaction  was  intended  to  have  a  post- 
humous effect,  there  may  have  been  disputes  w^hether  it  was  valid 
for  Testamentary  purposes  without  the  formal  assent  of  the 
Patrician  Parliament.  If  a  difference  of  opinion  existed  on  the 
point  between  the  two  classes  of  the  Roman  population,  it  was 
extinguished,  with  many  other  sources  of  heartburning,  by  the 
great  Decemviral  compromise.  The  text  of  the  Twelve  Tables 
is  still  extant  which  says,  "  Pater  familias  idi  de  yecunid  tuteldve 
rei  Slice  legdssit,  ita  jus  esto"  —  a  law  which  can  hardly  have  had 
any  other  object  than  the  legitimation  of  the  Plebeian  Will. 

It  is  well  known  to  scholars  that,  centuries  after  the  Patrician 
Assembly  had  ceased  to  be  the  legislature  of  the  Roman  State,  it 
still  continued  to  hold  formal  sittings  for  the  convenience  of 
private  business.  Consequently,  at  a  period  long  subsequent 
to  the  publication  of  the  Decemviral  Law,  there  is  reason  to  be- 
lieve that  the  Comitia  Calata  still  assembled  for  the  validation  of 
Testaments.  Its  probable  functions  may  be  best  indicated  by 
saying  that  it  was  a  Court  of  Registration,  with  the  understanding, 
however,  that  the  Wills  exhibited  were  not  enrolled,  but  simply 
recited  to  the  members,  who  were  supposed  to  take  note  of  their 
tenor  and  to  commit  them  to  memory.  It  is  very  likely  that 
this  form  of  Testament  was  never  reduced  to  writing  at  all,  but 
at  all  events  if  the  Will  had  been  originally  written,  the  office  of 
the  Comitia  was  certainly  confined  to  hearing  it  read  aloud,  the 
document  being  retained  afterwards  in  the  custody  of  the  Testator, 
or  deposited  under  the  safeguard  of  some  religious  corporation. 
This  publicity  may  have  been  one  of  the  incidents  of  the  Testament 
executed  in  the  Comitia  Calata  which  brought  it  into  popular 
disfavour.  In  the  early  years  of  the  Empire  the  Comitia  still 
held  its  meeting,  but  they  seem  to  have  lapsed  into  the  merest 


Chap.  XXX,  §  3.]  SUCCESSION  567 

form,  and  few  Wills,  or  none,  were  probably  presented  at  the 
periodical  sitting. 

It  is  the  ancient  Plebeian  Will — the  alternative  of  the  Testament 
just  described  —  which  in  its  remote  effects  has  deeply  modified 
the  civilisation  of  the  modern  world.  It  acquired  at  Rome  all 
the  popularity  which  the  Testament  submitted  to  the  Calata 
Comitia  appears  to  have  lost.  The  key  to  all  its  characteristics 
lies  in  its  descent  from  the  mancipium,  or  ancient  Roman  con- 
veyance, a  proceeding  to  which  we  may  unhesitatingly  assign 
the  parentage  of  two  great  institutions  without  which  modern 
society  can  scarcely  be  supposed  capable  of  holding  together,  the 
Contract  and  the  Will.  The  Mancipium,  or,  as  the  world  would 
exhibit  itself  in  later  Latinity,  the  Mancipation,  carries  us  back 
by  its  incidents  to  the  infancy  of  civil  society.  As  it  sprang 
from  times  long  anterior,  if  not  to  the  invention,  at  all  events  to 
the  popularisation,  of  the  art  of  writing,  gestures,  symbolical 
acts,  and  solemn  phrases  take  the  place  of  documentary  forms, 
and  a  lengthy  and  intricate  ceremonial  is  intended  to  call  the 
attention  of  the  parties  to  the  importance  of  the  transaction, 
and  to  impress  it  on  the  memory  of  the  witnesses.  The  imper- 
fection, too,  of  oral,  as  compared  with  written  testimony  necessi- 
tates the  multiplication  of  the  witnesses  and  assistants  beyond 
what  in  later  times  would  be  reasonable  or  intelligible  limits. 

The  Roman  Mancipation  required  the  presence  first  of  all  of 
the  parties,  the  vendor  and  vendee,  or  we  should  perhaps  rather 
sa}',  if  we  are  to  use  modern  legal  language,  the  grantor  and 
grantee.  There  were  also  no  less  than  five  witnesses;  and  an 
anomalous  personage,  the  Libripens,  who  brought  with  him  a 
pair  of  scales  to  weigh  the  uncoined  copper  money  of  ancient 
Rome.  The  Testament  we  are  considering  —  the  Testament 
per  CBS  et  libram,  "with  the  copper  and  the  scales,"  as  it  long  con- 
tinued to  be  technically  called  —  was  an  ordinary  Mancipation 
with  no  change  in  the  form  and  hardly  any  in  words.  The  Testator 
was  the  grantor ;  the  five  witnesses  and  the  libripens  were  present ; 
and  the  place  of  grantee  was  taken  by  a  person  known  technically 
as  the  familiae  emptor,  the  Purchaser  of  the  Family.  The  ordinary 
ceremony  of  a  Mancipation  was  then  proceeded  with.  Certain 
formal  gestures  were  made  and  sentences  pronounced.  The 
Emptor  familice  simulated  the  payment  of  a  price  bj'  striking  the 
scales  with  a  piece  of  money,  and  finally  the  Testator  ratified 
what  had  been  done  in  a  set  form  of  words  called  the  "Nun- 
cupatio"  or  publication  of  the  transaction,  a  phrase  which,  I 


568  TmNGS  [Part  III. 

need  scarcely  remind  the  lawyer,  has  had  a  long  history  in  Testa- 
mentary jurisprudence.  It  is  necessary  to  attend  particularly 
to  the  character  of  the  person  called  familioB  emptor.  There  is 
no  doubt  that  at  first  he  was  the  Heir  himself.  The  Testator 
conveyed  to  him  outright  his  whole  "familia,"  that  is,  all  the 
rights  he  enjoyed  over  and  through  the  family;  his  property, 
his  slaves,  and  all  his  ancestral  privileges,  together,  on  the  other 
hand,  with  all  his  duties  and  obligations. 

With  these  data  before  us,  we  are  able  to  note  several  remark- 
able points  in  which  the  Mancipatory  Testament,  as  it  may 
be  called,  differed  in  its  primitive  form  from  a  modern  Will.  As 
it  amounted  to  a  conveyance  out-and-out  of  the  Testator's  estate 
it  was  not  revocable.  There  could  be  no  new  exercise  of  a  power 
which  had  been  exhausted. 

Again,  it  was  not  secret.  The  Familiae  Emptor,  being  himself 
the  Heir,  knew  exactly  what  his  rights  were,  and  was  aware  that 
he  was  irreversibly  entitled  to  the  inheritance ;  a  knowledge 
which  the  violences  inseparable  from  the  best-ordered  ancient 
society  rendered  extremely  dangerous.  But  perhaps  the  most 
surprising  consequences  of  this  relation  of  Testaments  to  Con- 
veyances was  the  immediate  vesting  of  the  Inheritance  in  the 
Heir.  This  has  seemed  so  incredible  to  not  a  few  civilians,  that 
they  have  spoken  of  the  Testator's  estate  as  vesting  conditionally 
on  the  Testator's  death,  or  as  granted  to  him  from  a  time  un- 
certain, i.e.  the  death  of  the  grantor.  But  down  to  the  latest 
period  of  Roman  jurisprudence  there  was  a  certain  class  of  trans- 
actions which  never  admitted  of  being  directly  modified  by  a 
condition,  or  of  being  limited  to  or  from  a  point  of  time.  In 
technical  language  they  did  not  admit  conditio  or  dies.  Manci- 
pation was  one  of  them,  and  therefore,  strange  as  it  may  seem, 
we  are  forced  to  conclude  that  the  primitive  Roman  W'ill  took 
effect  at  once,  even  though  the  Testator  survived  his  act  of 
Testation.  It  is  indeed  likely  that  Roman  citizens  originally 
made  their  W^ills  only  in  the  article  of  death,  and  that  a  provision 
for  the  continuance  of  the  Family  eftected  by  a  man  in  the  flower 
of  life  would  take  the  form  rather  of  an  Adoption  than  of  a  W^ill. 
Still  we  must  believe  that,  if  the  Testator  did  recover,  he  could 
only  continue  to  govern  his  household  b}^  the  sufferance  of  his 
Heir. 

Two  or  three  remarks  should  be  made  before  I  explain  how 
these  inconveniences  were  remedied,  and  how  Testaments  came 
to  be  invested  with  the  characteristics  now  universally  associated 


Chap.  XXX,  §  3.]  SUCCESSION  569 

with  them.  The  Testament  was  not  necessarily  written :  at 
first,  it  seems  to  have  been  invariably  oral,  and,  even  in  later 
times,  the  instrument  declaratory  of  the  bequests  was  only  in- 
cidentally connected  with  the  Will  and  formed  no  essential  part 
of  it.  It  bore  in  fact  exactly  the  same  relation  to  the  Testament 
which  the  deed  leading  the  uses  bore  to  the  Fines  and  Recoveries 
of  old  English  law,  or  which  the  charter  of  feoffment  bore  to  the 
feoffment  itself.  Previously,  indeed,  to  the  Twelve  Tables,  no 
writing  would  have  been  of  the  slightest  use,  for  the  Testator 
had  no  power  of  giving  legacies,  and  the  only  persons  who  could 
be  advantaged  by  a  will  were  the  Heir  or  Co-heirs.  But  the 
extreme  generality  of  the  clause  in  the  Twelve  Tables  soon  pro- 
duced the  doctrine  that  the  heir  must  take  the  inheritance  bur- 
dened by  any  directions  which  the  Testator  might  give  him,  or, 
in  other  words,  take  it  subject  to  legacies.  Written  testamentary 
instruments  assumed  thereupon  a  new  value,  as  a  security  against 
the  fraudulent  refusal  of  the  heir  to  satisfy  the  legatees ;  but  to  the 
last  it  was  at  the  Testator's  pleasure  to  rely  exclusively  on  the 
testimony  of  the  witnesses,  and  to  declare  by  word  of  mouth 
the  legacies  which  the  familice  emptor  was  commissioned  to  pay. 
The  terms  of  the  expression  Emptor  familioB  demand  notice. 
''Emptor"  indicates  that  the  Will  was  literally  a  sale,  and  the 
word  "familiae,"  when  compared  with  the  phraseology  in  the 
Testamentary  clause  in  the  Twelve  Tables,  leads  us  to  some 
instructive  conclusions.  "Familia,"  in  classical  Latinity,  means 
always  a  man's  slaves.  Here,  however,  and  generally  in  the 
language  of  ancient  Roman  law,  it  includes  all  persons  under 
his  Potestas,  and  the  Testator's  material  property  or  substance 
is  understood  to  pass  as  an  adjunct  or  appendage  of  his  household. 
Turning  to  the  law  of  the  Twelve  Tables,  it  will  be  seen  that  it 
speaks  of  tutela  rei  shop,  "the  guardianship  of  his  substance,"  a 
form  of  expression  which  is  the  exact  reverse  of  the  phrase  just 
examined.  There  does  not  therefore  appear  to  be  any  mode  of 
escaping  from  the  conclusion,  that  even  at  an  era  so  comparatively 
recent  as  that  of  the  Decemviral  compromise,  terms  denoting 
"household"  and  "property"  were  blended  in  the  current  phrase- 
ology. If  a  man's  household  had  been  spoken  of  as  his  property, 
we  might  have  explained  the  expression  as  pointing  to  the  extent 
of  the  Patria  Potestas,  but,  as  the  interchange  is  reciprocal,  we 
must  allow  that  the  form  of  speech  carries  us  back  to  the  primeval 
period  in  which  property  is  owned  by  the  family,  and  the  family 
is  governed  by  the  citizen,  so  that  the  members  of  the  community 


570  THINGS  [Part  III. 

do  not  own  their  property  ajid  their  family,  but  rather  own  their 
property  through  their  family. 

At  an  epoch  not  easy  to  settle  with  precision,  the  Roman  Praetors 
fell  into  the  habit  of  acting  upon  Testaments  solemnised  in  closer 
conformity  with  the  spirit  than  the  letter  of  the  law.  Casual 
dispensations  became  insensibly  the  established  practice,  till  at 
length  a  wholly  new  form  of  Will  was  matured  and  regularly  en- 
grafted on  the  Edictal  Jurisprudence.  The  new  or  Prcetorian 
Testament  derived  the  whole  of  its  impregnability  from  the  Jus 
Honorarium  or  Equity  of  Rome.  The  Prsetor  of  some  particular 
year  must  have  inserted  a  clause  in  his  Inaugural  Proclamation 
declaratory  of  his  intention  to  sustain  all  Testaments  which 
should  have  been  executed  with  such  and  such  solemnities ;  and, 
the  reform  having  been  found  advantageous,  the  article  relating 
to  it  must  have  been  again  introduced  by  the  Praetor's  successor, 
and  repeated  by  the  next  in  office,  till  at  length  it  formed  a  recog- 
nised portion  of  that  body  of  jurisprudence  which  from  these 
successive  incorporations  was  styled  the  Perpetual  or  Continuous 
Edict.  On  examining  the  conditions  of  a  valid  Praetorian  Will 
they  will  be  plainly  seen  to  have  been  determined  by  the  require- 
ments of  the  Mancipatory  Testament,  the  innovating  Prsetor 
having  obviously  prescribed  to  himself  the  retention  of  the  old 
formalities  just  so  far  as  they  were  warrants  of  genuineness  or 
securities  against  fraud.  At  the  execution  of  the  Mancipatory 
Testament  seven  persons  had  been  present  besides  the  Testator. 
Seven  witnesses  were  accordingly  essential  to  the  Praetorian  Will ; 
two  of  them  corresponding  to  the  libripens  and  familioe  emrptor, 
who  were  now  stripped  of  their  symbolical  character,  and  were 
merely  present  for  the  purpose  of  supplying  their  testimony.  No 
emblematic  ceremony  was  gone  through ;  the  Will  was  merely 
recited;  but  then  it  is  probable  (though  not  absolutely  certain) 
that  a  written  instrument  was  necessary  to  perpetuate  the  evi- 
dence of  the  Testator's  dispositions.  At  all  events,  whenever  a 
writing  was  read  or  exhibited  as  a  person's  last  Will,  we  know 
certainly  that  the  Praetorian  Court  would  not  sustain  it  by  special 
intervention,  unless  each  of  the  seven  witnesses  had  severally 
affixed  his  seal  to  the  outside.  This  is  the  first  appearance  of 
sealing  in  the  history  of  jurisprudence,  considered  as  a  mode  of 
authentication.  The  use  of  seals,  however,  as  mere  fastenings,  is 
doubtless  of  much  higher  antiquity ;  and  it  appears  to  have  been 
known  to  the  Hebrews.  We  may  observe,  that  the  seals  of  the 
Roman  Wills,  and  other  documents  of  importance,  did  not  only 


Chap.  XXX,  §  3.]  SUCCESSION  571 

serve  as  the  index  of  the  present  or  assent  of  the  signatary,  but 
were  also  literally  fastenings  which  had  to  be  broken  before  the 
writing  could  be  inspected. 

The  Edictal  Law  would  therefore  enforce  the  dispositions  of  a 
Testator,  when,  instead  of  being  symbolised  through  the  forms 
of  mancipation,  they  were  simply  evidenced  by  the  seals  of  seven 
witnesses.  But  it  may  be  laid  down  as  a  general  proposition,  that 
the  principal  qualities  of  Roman  property  were  incommunicable 
except  through  processes  which  were  supposed  to  be  coeval  with 
the  origin  of  the  Civil  Law.  The  Praetor  therefore  could  not 
confer  an  Inheritance  on  anybody.  He  could  not  place  the  Heir 
or  Co-heirs  in  that  very  relation  in  which  the  Testator  had  him- 
self stood  to  his  own  rights  and  obligations.  All  he  could  do 
was  to  confer  on  the  person  designated  as  Heir  the  practical 
enjoyment  of  the  property  bequeathed,  and  to  give  the  force  of 
legal  acquittances  to  his  payments  of  the  Testator's  debts.  Wlien 
he  exerted  his  powers  to  these  ends,  the  Praetor  was  technically 
said  to  communicate  the  Bonorum  Possessio.  The  Heir  specially 
inducted  under  these  circumstances,  or  Bonorum  Possessor,  had 
every  proprietary  privilege  of  the  Heir  by  the  Civil  Law.  He 
took  the  profits  and  he  could  alienate,  but  then,  for  all  his  remedies 
for  redress  against  wrong,  he  must  go,  as  we  should  phrase  it,  not 
to  the  Common  Law,  but  to  the  Equity  side  of  the  Praetorian 
Court.  No  great  chance  of  error  would  be  incurred  by  describing 
him  as  having  an  equitable  estate  in  the  inlieritance ;  but  then, 
to  secure  ourselves  against  being  deluded  by  the  analogy,  we  must 
always  recollect  that  in  one  year  the  Bonorum  Possessio  was 
operated  upon  by  a  principle  of  Roman  Law  known  as  LTsucapion, 
and  the  Possessor  became  Quiritarian  owner  of  all  the  property 
comprised  in  the  inheritance. 

We  know  too  little  of  the  older  law  of  Civil  Process  to  be  able 
to  strike  the  balance  of  advantage  and  disadvantage  between 
the  different  classes  of  remedies  supplied  by  the  Praetorian  Tribu- 
nal. It  is  certain,  however,  that,  in  spite  of  its  many  defects, 
the  jMancipator}'  Testament  by  which  the  universitas  juris  de- 
volved at  once  and  unimpaired  was  never  entirely  superseded 
by  the  new  Will ;  and  at  a  period  less  bigoted  to  antiquarian 
forms,  and  perhaps  not  quite  alive  to  their  significance,  all  the 
ingenuity  of  the  Jurisconsults  seems  to  have  been  expended  on 
the  improvement  of  the  more  venerable  instrument.  At  the  era 
of  Gains,  which  is  that  of  the  Antonine  Caesars,  the  great  blemishes 
of  the  Mancipatory  Will  had  been  removed.     Originally,  as  we 


572  THINGS  [Part  III. 

have  seen,  the  essential  character  of  the  formahties  had  required 
that  the  Heir  himself  should  be  the  Purchaser  of  the  Family, 
and  the  consequence  was  that  he  not  only  instantly  acquired  a 
vested  interest  in  the  Testator's  Property,  but  was  formally  made 
aware  of  his  rights.  But  the  age  of  Gaius  permitted  some  un- 
concerned person  to  officiate  as  Purchaser  of  the  Family.  The 
Heir,  therefore,  was  not  necessarily  informed  of  the  succession 
to  which  he  was  destined ;  and  Wills  thenceforward  acquired  the 
property  of  secrecy.  The  substitution  of  a  stranger  for  the  actual 
Heir  in  the  functions  of  "Familise  Emptor"  had  other  ulterior 
consequences.  As  soon  as  it  was  legalised,  a  Roman  Testament 
came  to  consist  of  two  parts  or  stages,  —  a  Conveyance,  which 
was  a  pure  form,  and  a  Nuncupatio,  or  Publication.  In  this 
latter  passage  of  the  proceeding,  the  Testator  either  orally  de- 
clared to  the  assistants  the  wishes  which  were  to  be  executed 
after  his  death,  or  produced  a  written  document  in  which  his 
wishes  were  embodied.  It  was  not  probably  till  attention  had 
been  quite  drawn  off  from  the  imaginary  Conveyance,  and  con- 
centrated on  the  Nuncupatio  as  the  essential  part  of  the  transac- 
tion, that  Wills  were  allowed  to  become  revocable. 


PART  IV 
PROCEDURE 

Chapter   XXXI 

Section  1.     Survey  of  the  Law  of  Procedure 
By  Josef  Kohler 

Section  2.     Ancient  Magistracy 
By  Fustel  de  Coulanges 

Section  3.     Primitive  Forms  op  Legal  Remedies 
By  Henry  S.  Maine 

Section  4.     The  Ordeal  and  the  Oath 
By  Gustave  Glotz 

Section  5.     Ancient  Formalism 
By  Andreas  Heusler 

Section  6.     Ancient  Semitic  Procedure 
By  Stanley  A.  Cook 

Section  7.     Ancient  Roman  Procedure 
By  Rudolph  Sohm 

Section  8.     Evolution  of  Procedure 
By  Gabriel  Tarde 


Chapter  XXXI 

PROCEDURE 

Section  1 
SURVEY   OF   THE    LAW   OF   PROCEDURE  i 

1.  Peaceable  regulation  is  principally  furthered  by  the  wor- 
ship of  the  divinity.  The  divinity  is  often  the  goddess  of  peace ; 
she  resists  force  and  hates  disputes  and  quarreling.  So  it  happens 
that  the  efforts  to  obtain  the  settlement  of  legal  claims  and  dis- 
putes without  violence  cling  about  divine  service,  and  that  the 
law  of  procedure  is  divine  and  ecclesiastical,  before  it  becomes 
secular.  The  further  exposition  of  this  belongs  to  the  universal 
history  of  the  law ;  but  here  the  part  that  worship  played  in  the 
development  of  procedure  must  be  explained. 

2.  Already  on  the  plane  of  pure  legal  order,  the  priesthood 
attains  great  eminence ;  for  even  the  law  is  not  a  human  but  a 
divine  law.  The  creation  of  the  law  is  a  formation  of  the  con- 
ditions as  they  conform  and  are  agreeable  to  the  divinity ;  and 
the  exercise  of  the  law  corresponds  to  the  divine  will  —  at  least 
as  soon  as  religion  has  advanced  to  the  point  where  many  gods  are 
merged  into  one  unified  divine  authority. 

Hence  it  is  comprehensible  that  even  at  that  time  the  law  is 
made  mainly  by  the  priests,  and  that  they  endeavor  to  develop 
the  divine  will  in  all  directions. 

3.  But  this  activity  will  become  still  more  pronounced  when 
society  reaches  a  basis  of  peaceable  adjustment,  and  when  it  is  a 
question  of  opposing  the  individual  assertion  of  the  law.  Here, 
of  course,  people  will  turn  first  to  the  priesthood  when  arbitration 
courts  are  desired ;  for  they  have  the  best  knowledge  of  the  law. 
But  another  reason  is  also  combined  with  this.  The  priesthood 
represents  the  highest  power ;  it  possesses  the  authority  to  curse 

1  [Reprinted,  by  permission,  from  Josef  Kohler,  "Philosophy  of  Law" 
(AlbrechCs  trans.),  Boston  Book  Company,  1914  (Philosophy  of  Law 
Series,  XII).] 

575 


576  PROCEDURE  [Part  IV. 

and  expel  the  individual  who  resists.  This  is  a  power  that  exceeds 
all  others,  and  extends  into  eternity.  Thus,  of  course,  the  inter- 
vention of  the  priesthood  cannot  be  avoided,  when  quarrels  and 
disputes  arise,  and  it  will  fall  more  and  more  to  the  lot  of  the 
priests  to  solve  legal  questions,  whether  it  be  a  matter  of  the 
realization  of  justice  or  the  establishment  of  the  law. 

4.  Moreover,  the  people  of  that  time  believed  in  the  constant 
activity  and  intervention  of  the  divinity  for  the  individual ;  they 
assumed  that  the  divine  powers  would  never  forsake  the  inno- 
cent ;  that  they  would  not  permit  the  wrong  to  triumph.  Such  a 
man,  therefore,  believed  that  the  question  of  right  and  wrong  was 
unconditionally  solved  with  absolute  certainty  by  divine  inter- 
vention ;  so  that  all  doubt  disappeared,  and  man  bowed  to  the 
infallible  divine  decision.  This  of  course  strengthened  the  priestly 
procedure ;  for  it  was  just  the  priesthood  that  acted  as  the  media- 
tor in  the  individual's  relation  to  the  divinity,  and  appealed  to 
him  to  reveal  the  celestial  decision.  Thus  arose  what  is  called 
the  judgment  of  god  ("Gottesurteil"). 

5.  The  judgment  of  god  is  not  unique.  In  other  matters  also 
the  priesthood  acted  as  the  medium  through  which  the  divinity 
spoke ;  thus,  for  instance,  in  important  State  affairs,  when  re- 
sponsible decisions  were  to  be  made,  enlightenment  was  sought  of 
the  divinity ;  and  it  was  supposed  that  the  divine  power  could 
reveal  to  men  the  future.  Thus  arises  the  augury,  that  is,  the 
totality  of  means  used  to  discover  the  mystery  of  the  future.  It 
did  not  appear  to  the  same  extent  in  all  the  nations,  but  was  pro- 
nounced among  the  star-interpreting  Babylonians,  the  Etruscans, 
and  consequently  among  the  Romans ;   also  among  the  Chinese. 

Just  as  the  future  was  spied  out  in  this  way,  so  too  were  the 
present  and  the  past;  the  divinity  said  what  was  right;  it  an- 
nounced the  circumstances  that  were  determinative  for  justice ; 
especially  who  had  committed  an  evil  deed  and  who  was  guilty 
of  some  crime  was  learned  in  this  way. 

6.  Thus  an  abundance  of  divine  judgments  arose.  They 
were,  first,  those  that  were  closely  connected  with  the  augury ; 
like  the  judgment  by  lot  or  the  seer's  power,  the  priest  believing 
that  in  some  manner  he  could  discover  the  evil  doer.  Second, 
there  were  the  divine  judgments  connected  with  the  worship  of 
the  dead ;  it  being  supposed  that  a  murdered  man  would  point 
out  his  murderer,  a  belief  which  appears  in  various  forms  in  the 
life  of  the  nations  :  the  wounds  bleed  if  the  murderer  comes  near, 
the  bearers  of  the  body  suddenly  become  paralyzed  at  sight  of 


I 


Chap.  XXXI,  §  1.]     SURVEY   OF   THE    LAW   OF   PROCEDURE  577 

the  murderer,  etc.  Then  there  were  the  divine  judgments  proper  : 
the  accused,  or  sometimes  the  accuser,  or  both,  were  placed  in 
relation  to  some  material  object  so  that  this  deified  object  might 
in  some  way  make  known  their  guilt  or  innocence ;  thus,  for  in- 
stance, there  were  the  ordeals  by  fire,  by  water,  and  many  others. 

It  is  unjust  to  suppose  that  lying  and  deception,  or  even  mere 
chance,  played  a  large  part  in  these  judgments.  There  was  cer- 
tainly no  intentional  deception  until  all  these  institutions  reached 
a  state  of  decay,  and  the  priesthood  began  a  rapid  decline.  But 
even  the  effect  of  chance  was  limited ;  for  frequently  the  elements 
of  reason  were  also  involved.  The  consciousness  of  guilt  or 
innocence  was  an  important  factor  in  these  tests ;  they  assumed 
more  and  more  the  character  of  allowing  the  psychic  emotions  of 
the  suspected  person  to  appear,  when  he  was  confronted  with  the 
deified  things  of  nature.  Thus,  for  instance,  the  fact  that  the 
accused  trembled,  or  in  some  other  way  expressed  inward  excite- 
ment, might  be  interpreted  as  arising  from  the  consciousness  of 
guilt.  As  regards  prophetic  vision  and  the  belief  in  the  power  of 
the  dead,  it  may  also  be  assumed  that  the  reasonable  motives 
that  led  to  the  conviction  that  one  or  another  was  guilty,  so  over- 
came the  priests  and  the  bearers  of  the  dead  that  the  cultural 
phenomena  appeared  just  when  consideration  of  the  facts  made 
one  or  another  seem  guilty ;  for  it  is  a  well-known  psychic  expe- 
rience that  such  convictions  affect  our  imaginative  activity  beneath 
the  surface  of  our  consciousness,  and  often  we  are  as  if  possessed 
by  reasonable  ideas  that  grow  up  in  us  more  or  less  unconsciously. 

But,  even  if  we  must  assume  that  the  element  of  chance  was 
large  —  and  this  can  scarcely  be  doubted  —  yet,  it  must  be  taken 
into  consideration  that  the  sacrifice  of  the  individual  secured  the 
peace  of  society  ;  for  the  belief  in  the  correctness  of  the  divine 
judgment  was  so  great  that  even  the  innocent  man  believed  him- 
self guilty,  and  thought  that  he  had  been  caused  to  murder  bj^ 
some  evil  magic  spell,  or  had  attracted  murderous  spirits  to  himself. 

Universal  history  often  requires  the  individual  to  be  thus 
sacrificed :  the  iron  tread  of  progress  tramples  thousands  under 
foot.  This  is  a  terrible  phenomenon  which  we  must  moderate 
and  ameliorate,  as  far  as  possible,  in  the  course  of  the  development 
of  culture.  But  here  we  must  simply  accept  the  ways  of  Divine 
Providence,  in  the  consciousness  that  thus  the  progress  of  the 
world  is  accomplished ;  and  we  must  realize  that  our  modern 
criminal  procedure  also  demands  thousands  of  innocent  victims, 
so  liable  to  error  are  our  methods  of  proof  and  conviction. 


578  PROCEDURE  [Part  IV. 

7.  Procedure  must  advance  beyond  this  stage,  and  become  a 
procedure  of  reason,  as  soon  as  humanity  ceases  to  believe  in  the 
basis  of  the  earher  procedure ;  that  is,  as  soon  as  men  no  longer 
assume  that  the  divinity  intervenes  in  the  government  of  the 
world  for  every  individual,  and  gives  him  a  good  or  bad  testimonial. 
When  once  this  belief  has  ceased,  procedure  must  be  along  entirely 
different  lines :  the  essential  thing  is,  not  that  it  should  actually 
lead  to  objectively  right  results,  but  that  society  should  recognize 
the  dominion  of  the  law  in  the  administration  of  justice.  Hence, 
as  long  as  people  believe  in  a  divine  procedure,  it  can  be  retained ; 
but  when  once  this  belief  is  shaken,  procedure  must  be  built  up 
on  another  foundation. 

This  cannot  be  done,  however,  until  education  has  advanced 
so  far  that  it  is  possible  to  obtain  fairly  sound  results  with  the  pro- 
cedure of  reason ;  and  this  is  only  possible  if  judges  possess  a 
certain  degree  of  insight,  if  the  impartiality  of  those  who  find  the 
judgment  is  beyond  doubt,  and  also  if  the  conditions  of  life  are 
such  that  it  is  possible,  in  the  main,  to  reach  a  reasonable  estab- 
lishment of  the  necessary  facts. 

Until  man  has  reached  this  point,  the  religious  method  of  proof 
will  continue  to  live  in  certain  offshoots.  It  does  not  die  easily, 
and  can  still  be  traced  even  today  in  certain  institutions. 

8.  One  of  its  outgrowths,  for  instance,  is  the  oath,  which 
means  in  reality  that  a  man  curses  himself  in  the  expectation  of 
drawing  down  upon  himself  the  curse  of  the  divinity  should  he  be 
in  the  wrong.  This  institution  can  maintain  itself  for  a  long 
time ;  for  even  if  men  no  longer  believe  that  the  curse  of  God  can 
be  brought  down  upon  us  by  the  will  and  power  of  men,  yet  the 
belief  that  it  is  possible  for  a  man,  by  appealing  to  the  divinity, 
to  place  himself  under  the  divine  power  of  vengeance,  is  not  so 
remote  even  from  the  man  of  today.  In  addition,  compurgators 
were  called  ;  originally  they  were  relatives ;  later,  any  persons  of 
untarnished  reputation. 

The  institution  of  divine  judgment  had  one  very  evil  result  — 
the  torture  —  one  of  the  worst  institutions  that  the  erring  human 
mind  ever  devised.  The  original  idea  w^as  that,  just  as  the  divine 
judgment  leaves  the  innocent  persons  untouched,  so  too  they  will 
be  able  to  bear  torture  without  succumbing.  But  even  after  this 
idea  had  gradually  declined,  torture  still  remained  as  a  means  of 
extorting  testimony  which  was  considered  necessary,  whether  it 
was  to  extract  a  confession,  or  a  statement,  or  to  discover  where  a 
treasure  was  buried  or  the  identity  of  accessories  and  confederates. 


Chap.  XXXI,  §  1.]      SURVEY    OF   THE    L.\W   OF   PROCEDURE  579 

Also  this  institution,  eating  like  a  canker  into  mankind,  had  to  be 
overcome  before  modern  procedure  could  arise. 

9.  In  the  procedure  of  today,  however,  we  have  first  of  all  the 
far-reaching  division  between  civil  and  criminal  procedure.  In 
earlier  times  there  was  no  conception  of  this  difference.  Anyone 
with  a  grievance  simply  presented  himself  before  the  judge,  whether 
he  demanded  the  punishment  of  another,  desired  to  have  his 
property  returned,  or  was  anxious  in  one  way  or  another  to  have 
some  disagreement  settled.  Only  gradually,  after  the  State  had 
properly  grasped  the  criminal  idea,  was  the  great  difference  per- 
ceived in  the  activity'  of  the  State,  whether  it  prosecuted  an  evil 
doer  in  the  name  of  society,  or  whether  it  made  it  possible  for  the 
individual  to  establish  and  realize  his  rights. 

10.  Courts  were  originally  either  priestly  courts,  popular  courts, 
or  chieftains'  courts.  The  priestly  courts  made  an  effort  in  favor 
of  scientific  form,  and  it  is  not  by  chance  that  the  science  of  the 
law  was  first  developed  mainly  in  religious  colleges.  Sometimes 
the  chieftains'  courts  imitated  the  priestly  courts,  and  possibly 
competed  with  them  as  regards  legal  education.  The  popular 
courts,  on  the  other  hand,  always  maintained  a  certain  degree  of 
informality,  and  their  administration  of  the  law  was  more  or  less 
simple  and  naive,  proceeding  from  the  midst  of  the  population 
that  practised  the  law,  without  careful  working  out,  and  more  un- 
consciously than  on  the  basis  of  principle.  Nevertheless,  such 
courts  sometimes  rose  to  considerable  eminence  under  the  influ- 
ence of  certain  unusually  learned  persons :  take,  for  instance  the 
office  of  "law-man"  in  the  Scandinavian  law.  Sometimes,  too, 
the  popular  court  developed  into  a  court  composed  of  persons 
from  among  the  people  who  were  considered  to  have  special 
knowledge  of  the  laws;  and  thus  the  popular  court  became  an 
assessors'  court  ("  SchSff engericht ") . 

11.  With  the  growth  of  the  priestly  and  chieftains'  courts,  in 
contrast  to  the  popular  courts,  a  law  as  understood  by  jurists 
("  Juristenrecht")  was  developed  as  against  the  popular  law 
("  Volksrecht").  Both  belonged  to  customary  law  ("  Gewohn- 
heitsrecht "),  but  the  juristic  law  grasped  the  matter  with  a  logically 
trained  understanding,  the  popular  law  with  an  instinctive  general 
view  of  life  ("Weltanschauung"). 

12.  As  the  development  of  the  law  is  partly  teleological,  partly 
logical,  no  one  kind  of  court  will  be  the  only  right  one  ;  the  proper 
court  can  only  be  formed  by  a  combination  of  the  popular  court 
and  the  technical  court.     Both  can  contribute  to  the  advance  of 


580  PROCEDURE  [Part  IV. 

the  administration  of  justice.  Technical  law  has  an  easily  under- 
stood tendency  toward  exaggerated  logic,  unwholesome  elabora- 
tion, sophistry,  and  quibbling.  Popular  law,  on  the  contrary,  is 
inclined  to  lose  its  balance,  and  to  be  so  dominated  by  practical 
considerations  that  it  goes  to  pieces.  It  is  also  in  danger  of  losing 
itself  in  circumstantials,  and  since  in  it  a  firm  core  is  lacking,  to 
become  the  shuttlecock  of  momentary  moods  and  passions. 

Section  2 

ANCIENT   MAGISTRACY! 

The  union  of  the  political  authority  and  the  priesthood  in  the 
same  person  did  not  cease  with  royalty.  The  revolution  which 
established  the  republican  regime,  did  not  separate  functions  whose 
connection  appeared  natural,  and  was  then  the  fundamental  law 
of  human  society.  The  magistrate  who  replaced  the  king  was, 
like  him,  a  priest,  and  at  the  same  time  a  political  chief. 

Sometimes  this  annual  magistrate  bore  the  sacred  title  of  king.^ 
In  other  places  the  title  of  prytane,^  which  he  retained,  indicated 
his  principal  function.  In  other  cities  the  title  of  archon  prevailed. 
At  Thebes,  for  example,  the  first  magistrate  was  called  by  this 
name ;  but  what  Plutarch  says  of  this  office  shows  that  it  diftered 
little  from  the  priesthood.  This  archon,  during  his  term  of  office, 
was  required  to  wear  a  crown,'*  as  became  a  priest ;  religion  forbade 
him  to  let  his  hair  grow,  or  to  carry  any  iron  object  upon  his  person 
—  a  regulation  which  made  him  resemble  the  Roman  flamen. 
The  city  of  Platsea  also  had  an  archon,  and  the  religion  of  this 
city  required  that,  during  his  whole  term  of  office,  he  should  be 
clothed  in  white  ^  —  that  is  to  say,  in  the  sacred  color. 

The  Athenian  archons,  when  entering  upon  their  duty,  ascended 
the  Acropolis,  their  heads  crowned  with  myrtle,  and  offered  a 
sacrifice  to  the  divinity  of  the  city.^  It  was  also  a  custom  for  them, 
in  the  exercise  of  their  duty,  to  wear  a  crown  of  leaves  upon  their 
heads.^  Now,  it  is  certain  that  the  crown,  which  in  the  course  of 
time  became,  and  has  remained,  the  symbol  of  power,  was  then 

'  [By  FusTEL  DE  CoTTLANGEs,  "  The  Ancient  City " ;  translated  by 
Willard  Small;  11th  ed.,  Lothrop,  Lee,  and  Shepard  Co.,  Boston;  re- 
printed by  permission.] 

2  At  Megara,  at  Samothrace.  Livy,  XLV.  5.  Boeckh,  "Corp.  Inscr.," 
1052. 

^  Pindar,  ''Nem.,"  XI. 

«  Plutarch,  "Rom.  Quest.,"  40.  »  jf^^d^  "Aristides,"  21. 

^  Thnrydides,  VIII.  70.     Apollodorus,  "Fragment,"  21  (coll.  Didot). 

^  Demosthenes,  "in  Meidiam,"  33.     /Eschines,  "in  Timarch.,"  19. 


Chap.  XXXI,  §  2.]  ANCIENT   MAGISTRACY  581 

only  a  religious  emblem,  an  exterior  sign,  v/hich  accompanied 
pra^'er  and  sacrifice.^  Among  the  nine  archons  the  one  called  king 
was  especially  a  religious  chief ;  but  each  of  his  colleagues  had  some 
sacerdotal  function  to  fulfil,  some  sacrifice  to  offer  to  the  gods.^ 

The  Greeks  had  a  general  expression  to  designate  magistrates; 
the}^  said  ol  iv  reXei,  —  which  signified,  literally,  those  who  are  to 
accomplish  the  sacrifice ;  ^  an  old  expression,  indicating  the  idea 
that  was  entertained  of  the  magistrate  in  early  times.  Pindar  says 
of  these  personages  that,  by  the  offerings  which  they  make  to  the 
sacred  fire,  they  assure  the  safety  of  the  city. 

At  Rome  the  first  act  of  the  consul  was  to  offer  a  sacrifice  in  the 
forum.  Mctims  were  brought  to  the  public  square;  when  the 
pontiff  had  declared  them  worthy  of  being  offered,  the  consul 
immolated  them  with  his  own  hand,  while  a  herald  enjoined  a  reli- 
gious silence  upon  the  multitude,  and  a  flute-player  sounded  the 
sacred  air.^  A  few  days  later,  the  consul  repaired  to  Lavinium, 
whence  the  Roman  penates  had  come,  and  offered  another  sacrifice. 

When  we  examine  the  character  of  the  magistrate  among  the 
ancients  with  a  little  attention,  we  see  how  slightly  he  resembles 
the  chief  of  state  of  modern  societies.  Priesthood,  justice,  and 
command  are  confounded  in  his  person.  He  represents  the  city, 
which  is  a  religious  association,  as  much,  at  least,  as  a  political 
one.  He  has  in  his  hands  the  auspices,  the  rites,  prayer,  the 
protection  of  the  gods.  A  consul  is  something  more  than  a 
man ;  he  is  a  mediator  between  man  and  the  divinity.  To  his 
fortune  is  attached  the  public  fortune ;  he  is,  as  it  were,  the  tute- 
lary genius  of  the  city.  The  death  of  a  consul  is  calamitous  to 
the  republic.^  When  the  consul  Claudius  Nero  left  his  army  to 
fly  to  the  succor  of  his  colleague,  Livy  shows  us  into  how  great 
alarm  Rome  was  thrown  for  the  fate  of  this  army ;  this  was  be- 
cause, deprived  of  its  chief,  the  army  was  at  the  same  time  de- 
prived of  its  celestial  protection;  with  the  consul,  the  auspices 
have  gone  —  that  is  to  say,  religion  and  the  gods. 

The  other  Roman  magistracies,  which  were,  in  a  certain  sense, 
members  successiveh'  detached  from  the  consulship,  like  that  office, 
united  sacerdotal  and  political  attributes.  We  have  seen  the 
censor,  on  certain  days,  with  a  crown  upon  his  head,  offering  a 

•  Plutarch,  "Nicias,"  3;    "Phocion,"  37.     Cicero,  ''in  Verr.,"  IV.  50. 

'^  Pollux,  VIII.  ch.  IX.     Lycurgus  (coll.  Didot),  t.  II.  p.  362. 

'>  Thucydides,  I.  10;    II.  10;    HI.  36;    IV.   65.      Comp.    Herodotus,  I. 

133;  III.  18;  ^schylus,  ''Pers.,"  204;  ^'Agam.,"  1202;  Euripides, 
"Traeh.  "  238. 

'  Cicero,  "De  Lege  Agr.,"  II.  34.  Livy,  XXI.  63.     Macrobius,  III.  3. 

^  Livy,  XXVII.  40. 


582  PROCEDURE  [Part  IV. 

sacrifice  in  the  name  of  the  city,  and  striking  down  a  victim  with 
his  own  hand.  The  pretors  and  the  curule  ediles  presided  at  re- 
ligious festivals.^  There  was  no  magistrate  who  had  not  some 
sacred  act  to  perform;  for,  in  the  minds  of  the  ancients,  all  au- 
thority ought  to  have  some  connection  with  religion.  The 
tribunes  of  the  people  were  the  only  ones  who  had  no  sacrifice  to 
offer;  but  they  were  not  counted  among  the  real  magistrates. 
We  shall  see,  farther  along,  that  their  authority  was  of  an  entirely 
exceptional  nature. 

The  sacerdotal  character  belonging  to  the  magistrate  is  shown 
above  all,  in  the  manner  of  his  election.  In  the  eyes  of  the  ancients, 
the  votes  of  men  were  not  sufficient  to  establish  the  ruler  of  a  city. 
So  long  as  the  primitive  royalty  lasted,  it  appeared  natural  that 
this  ruler  should  be  designated  by  birth,  by  virtue  of  the  religious 
law  which  prescribed  that  the  son  should  succeed  the  father  in 
every  priestly  office ;  birth  seemed  sufficiently  to  reveal  the  will  of 
the  gods.  When  revolutions  had  ever}n;v'here  suppressed  this 
royalty,  men  appear  to  have  sought,  in  the  place  of  birth,  a  mode 
of  election  which  the  gods  might  not  have  to  disavow.  The 
Athenians,  like  many  Greek  peoples,  saw  no  better  way  than  to 
draw  lots ;  but  we  must  not  form  a  wrong  idea  of  this  procedure, 
which  has  been  made  a  subject  of  reproach  against  the  Athenian 
democracy ;  and  for  this  reason  it  is  necessary  that  we  attempt  to 
penetrate  the  view  of  the  ancients  on  this  point.  For  them  the 
lot  was  not  chance ;  it  was  the  revelation  of  the  divine  will.  Just 
as  they  had  recourse  to  it  in  the  temples  to  discover  the  secrets 
of  the  gods,  so  the  city  had  recourse  to  it  for  the  choice  of  its 
magistrate.  It  was  believed  that  the  gods  designated  the  most 
worthy  by  making  his  name  leap  out  of  the  urn.  This  was  the 
opinion  of  Plato  himself,  who  says,  "He  on  whom  the  lot  falls  is 
the  ruler,  and  is  dear  to  the  gods ;  and  this  we  affirm  to  be  quite 
just.  The  officers  of  the  temple  shall  be  appointed  by  lot ;  in  this 
way  their  election  will  be  committed  to  God,  w^ho  will  do  what  is 
agreeable  to  him."  The  city  believed  that  in  this  manner  it 
received  its  magistrates  from  the  gods.^ 

1  Varro,  "L.  L.,"  VI.  54.     Athencexis,  XIV.  79. 

^  Plato,  ^'Laws,"  III.  090;  VI.  759.  Comp.  Demetrius  Phalereus, 
"Fragm.,"  4.  It  is  surprising  that  modern  historians  represent  the 
drawing  of  lots  as  an  invention  of  the  Athenian  democracy.  It  was,  on  the 
contrary,  in  full  rigor  under  the  rule  of  the  aristocracy  (Plutarch,  "Per- 
icles," 9),  and  appears  to  have  been  as  old  as  the  arehonship  itself.  Nor 
is  it  a  democratic  procedure :  we  know,  indeed,  that  even  in  the  time  of 
Lysias  and  of  Demosthenes,  the  names  of  all  the  citizens  were  not  put  in 
the  urn  (Lysias,  "Orat.,  de  Invalido,"  c.  13;    "in  Andocidem,"  c.  4): 


Chap.  XXXI,  §  2.]  ANCIENT   MAGISTRACY  583 

Affairs  are  substantially  the  same  at  Rome.  The  designation 
of  a  consul  did  not  belong  to  men.  The  will  or  the  caprice  of  the 
people  could  not  legitimately  create  a  magistrate.  This,  therefore, 
was  the  manner  in  which  the  consul  was  chosen.  A  magistrate  in 
charge  —  that  is  to  say,  a  man  already  in  possession  of  the  sacred 
character  and  of  the  auspices  —  indicated  among  the  dies  fasti 
the  one  on  which  the  consul  ought  to  be  named.  During  the  night 
which  preceded  this  day,  he  watched  in  the  open  air,  his  eyes  fixed 
upon  the  heavens,  observing  the  signs  which  the  gods  sent,  whilst 
he  pronounced  mentally  the  name  of  some  candidate  for  the 
magistracy.^  If  the  presages  were  favorable,  it  was  because  the 
gods  accepted  the  candidate.  The  next  day  the  people  assembled 
in  the  Campus  Martins;  the  same  one  who  had  consulted  the  gods 
presided  at  the  assembly.  He  pronounced  in  a  loud  voice  the 
names  of  the  candidates  concerning  whom  he  had  taken  the 
auspices.  If  among  those  who  sought  the  consulship  there  was 
one  for  whom  the  auspices  had  not  been  favorable,  his  name  was 
omitted.-  The  people  voted  upon  those  names  only  which  had 
been  pronounced  by  the  president.^  If  the  president  named  but 
two  candidates,  the  people  necessarily  voted  for  them ;  if  he 
named  three,  they  chose  two  of  them.  The  assembly  never 
had  the  right  to  vote  for  other  men  than  those  whom  the 
president  had  designated ;  for  the  auspices  had  been  for  those 
only,  and  for  those  only  had  the  consent  of  the  gods  been 
assured. 

This  mode  of  election,  which  was  scrupulously  followed  in  the 
first  ages  of  the  republic,  explains  some  peculiarities  of  Roman 
history  which  at  first  surprise  us.  We  see,  for  example,  that  quite 
frequently  the  people  are  unanimous  for  two  men  for  the  consul- 
ship, and  still  they  are  not  elected.  This  is  because  the  president 
has  not  taken  the  auspices  concerning  these  two  men,  or  the 
auspices  have  not  been  favorable.     On  the  other  hand,  we  have 

for  a  still  stronger  reason  was  this  true  when  the  Eupatrids  only,  or  the 
Pentakosiomedimni  could  be  archons.  Passages  of  Plato  show  clearly 
what  idea  the  ancients  had  of  the  drawing  of  lots ;  the  thought  which 
caused  it  to  be  employed  for  magistrate-priests  like  the  archons,  or  for 
senators  charged  with  holy  duties  like  the  prj^tanes,  was  a  religious  idea, 
and  not  a  notion  of  equality.  It  is  worthy  of  remark,  that  when  the 
democracy  gained  the  upper  hand,  it  reserved  the  selection  by  lot  for  the 
choice  of  archons,  to  whom  it  left  no  real  power,  and  gave  it  up  in  the 
choice  of  strategi,  who  then  had  the  true  authority.  So  that  there  was 
drawing  of  lots  for  magistracies  which  dated  from  the  aristocratic  age, 
and  election  for  those  that  dated  from  the  age  of  the  democracy. 
'  Valerius  Maximns,  I.  1,  3.     Plutarch,  "Marcellus,"  5. 

2  Livy,  XXXIX.  39.      Velleius,  II.  92.      Valerius   Maximns,  III.  8,  3. 

3  Dionysius,  IV.  84  ;  V.  19  ;  V.  72  ;   V.  77  ;   VI.  49. 


584  PROCEDURE  [Part  IV. 

seen  the  people  elect  to  the  consulship  men  whom  they  detested.^ 
This  was  because  the  president  pronounced  only  these  two  names. 
It  was  absolutely  necessary  to  vote  for  them,  for  the  vote  was  not 
expressed  by  "yes"  or  "no  "  ;  every  vote  was  required  to  contain 
two  names,  and  none  could  be  written  except  those  that  had  been 
designated.  The  people,  when  candidates  were  presented  who 
were  odious  to  them,  could  indeed  show  their  displeasure  by  retir- 
ing without  a  vote ;  but  there  always  remained  in  the  enclosure 
citizens  enough  to  make  up  a  quorum. 

Here  we  see  how  great  was  the  power  of  the  president  of  the 
comitia,  and  we  no  longer  wonder  at  the  expression,  Great  consules, 
which  referred  not  to  the  people,  but  to  the  president  of  the  comitia. 
It  was  of  him,  indeed,  rather  than  of  the  people,  that  it  might  be 
said,  "He  creates  the  consuls  ;"  for  he  was  the  one  who  discovered 
the  wull  of  the  gods.  If  he  did  not  create  the  consuls,  it  was  at 
least  through  him  that  the  gods  created  them.  The  power  of  the 
people  went  no  farther  than  to  ratify  the  election,  or,  at  most,  to 
select  among  three  or  four  names,  if  the  auspices  had  been  equally 
favorable  to  three  or  four  candidates. 

Doubtless  this  method  of  procedure  was  very  advantageous  to 
the  Roman  aristocracy ;  but  we  should  deceive  ourselves  if  we 
saw  in  all  this  merely  a  ruse  invented  by  them.  Such  a  ruse  was 
never  thought  of  in  the  ages  when  they  believed  in  this  religion. 
Politically  it  was  useless  in  the  first  ages,  since  at  that  time  the 
patricians  had  a  majority  in  voting.  It  might  even  have  turned 
against  them,  by  investing  a  single  man  with  exorbitant  power. 
The  only  explanation  that  can  be  given  of  this  custom,  or,  rather, 
of  these  rites  of  election,  is,  that  every  one  then  sincerely  believed 
that  the  choice  of  the  magistrates  belonged,  not  to  the  people,  but 
to  the  gods.  The  man  in  whose  hands  the  religion  and  the  fortune 
of  the  city  were  to  be  placed,  ought  to  be  revealed  by  the  divine 
voice. 

The  first  rule  for  the  election  of  a  magistrate  is  the  one  given 
by  Cicero:  "That  he  be  named  according  to  the  rites."  If, 
several  months  afterwards,  the  senate  was  told  that  some  rite 
had  been  neglected,  or  badly  performed,  it  ordered  the  consuls  to 
abdicate,  and  they  obeyed.  The  examples  are  very  numerous; 
and  if,  in  case  of  two  or  three  of  them,  we  may  believe  that  the 
senate  was  very  glad  to  be  rid  of  an  ill-qualified  or  ill-intentioned 
consul,  the  greater  part  of  the  time,  on  the  contrary,  we  cannot 
impute  other  motives  to  them  than  religious  scruples. 
^Lwj,  II.  42;   II.  43. 


Chap.  XXXI,  §  2.]  ANCIENT   MAGISTRACY  585 

When  the  lot  or  the  auspices  had  designated  an  archon  or  a 
consul,  there  was,  it  is  true,  a  sort  of  proof  by  which  the  merits 
of  the  newly-elected  officer  were  examined.  But  even  this  will 
show  us  what  the  city  wished  to  find  in  its  magistrate ;  and  we 
shaJl  see  that  it  sought  not  the  most  courageous  warrior,  not  the 
ablest  and  most  upright  man  in  peace,  but  the  one  best  loved  by 
the  gods.  Indeed,  the  Athenian  senate  inquired  of  the  magistrate 
elect  if  he  had  any  bodily  defect,  if  he  possessed  a  domestic  god, 
if  his  family  had  always  been  faithful  to  his  worsliip,  if  he  himself 
had  always  fulfilled  his  duties  towards  the  dead.^  Why  these 
questions  ?  Because  a  bodily  defect  —  a  sign  of  the  anger  of  the 
gods  —  rendered  a  man  unfit  to  fill  any  priestly  office,  and  conse- 
quently to  exercise  any  magistracy ;  because  he  who  had  no  family 
worship  ought  not  to  have  a  national  worship,  and  was  not  qualified 
to  offer  the  sacrifices  in  the  name  of  the  city ;  because,  if  his  family 
had  not  always  been  faithful  to  his  worship,  —  that  is  to  say,  if 
one  of  his  ancestors  had  committed  one  of  those  acts  which  affect 
religion,  —  the  hearth  was  forever  contaminated,  and  the  de- 
scendants were  detested  by  the  gods ;  finally,  because,  if  he  him- 
self had  neglected  the  tomb  of  his  dead,  he  was  exposed  to  their 
dangerous  anger,  and  was  pursued  by  invisible  enemies.  The 
city  would  have  been  very  daring  to  have  confided  its  fortunes 
to  such  a  man.  These  are  the  principal  questions  "that  were  ad- 
dressed to  one  who  was  about  to  become  a  magistrate.  It  ap- 
peared that  men  did  not  trouble  themselves  about  his  character 
or  his  knowledge.  They  tried  especially  to  assure  themselves  that 
he  was  qualified  for  the  priestly  office,  and  that  the  religion  of  the 
city  would  not  be  compromised  in  his  hands. 

This  sort  of  examination  was  also  in  use  at  Rome.  We  have 
not,  it  is  true,  any  information  as  to  the  questions  which  the  consul 
was  required  to  answer.  But  it  is  enough  to  know  that  this  ex- 
amination was  made  by  the  pontiffs." 

1  Plato,  "Laws,"  VI.  Xenophon,  ^'Mem.,"  II.  Pollux,  VIII.  85, 
86,  95. 

2  Dionysius,  II.  73. 

0  ,  -T^,^.^^^  ,^ 


586  PROCEDURE  [Part  IV. 

Section  3 

THE    PRIMITIVE    FORMS   OF    LEGAL   REMEDIES  i 

I 


The  value  of  the  precious  discovery  made  by  Niebuhr,  when  he 
disinterred  in  1816  the  manuscript  of  Gaius,  does  not  solely  arise 
from  the  new  light  which  was  at  once  thrown  on  the  beginnings 
of  the  legal  system  which  is  the  fountain  of  the  greatest  part  of 
civilised  jurisprudence.  There  are  portions  of  the  treatise  then 
restored  to  the  world  which  afford  us  glimpses  of  something  older 
than  law  itself,  and  which  enable  us  to  connect  with  law  the  prac- 
tices dictated  to  barbarous  men  by  impulses  which  it  has  become 
the  prime  office  of  all  law  to  control.  At  the  head  of  the  passages 
in  the  work  of  Gaius  which  allow  the  mind's  eye  to  penetrate  some 
little  way  into  the  chaos  out  of  which  social  order  sprang,  I  place 
the  fragmentary  and  imperfect  account,  given  near  the  com- 
mencement of  the  Fourth  Book,  of  the  old  Legis  Actiones,^  which 
in  the  age  of  Gaius  himself  had  ceased  to  have  more  than  an  his- 
torical and  antiquarian  interest. 

Legis  Actio,  of  which  the  exact  meaning  does  not  seem  to  have  been 
known  to  Gaius,  may  be  conjectured  to  have  been  the  substantive 
form  of  the  verbal  expression,  legem  or  lege  agere,  and  to  have  been 
equivalent  to  what  we  now  call  Procedure.  It  has  been  several 
times  observed  that  among  the  Legis  Actiones  are  included  several 
proceedings  which  are  not  of  the  nature  of  Actions  or  Suits,  but  are 
rather  modes  of  executing  decrees.  The  fact  seems  to  be  that,  by 
a  course  of  change  which  may  be  traced  in  the  history  of  Roman 
law,  one  portion,  'Actio,'  of  the  venerable  phrase  'Legis  Actio' 
has  been  gradually  disjoined  from  the  rest,  and  has  come  to  denote 
that  stage  of  the  administration  of  justice  which  is  directly  con- 
ducted by  the  Court,  together,  in  some  judicial  systems,  with  the 
stage  immediately  preceding  it.  I  suppose  that  originally  lex, 
used  of  the  assumed  written  basis  of  Roman  law,  and  legis  actio, 
corresponded  roughly  to  what  many  centuries  afterwards  were 
called  Substantive  and  Adjective  Law,  the  law  declaring  rights  and 
duties  and  the  rules  according  to  which  the  law  declaring  rights 

1  [By  Sir  Henry  S.  Maine.  Reprinted  from  "Early  History  of  Insti- 
tutions," by  permission  of  Henry  Holt  and  Company,  New  York.] 

^  [This  passage  is  given  in  Vol.  I  of  this  Series  (''  Sources  of  Ancient  and 
Primitive  Law"),  Part  IV,  Chap.  XXIII,  Sec.  4,  No.  1.] 


Chap.  XXXI,  §  3.]         PEIMITIVE   LEGAL   REMEDIES  587 

and  duties  is  administered.  ...  As  a  fact,  it  is  only  in  the  most 
recent  times  or  in  the  most  highly  developed  legal  systems  that 
remedies  have  lost  importance  in  comparison  with  rights  and  have 
ceased  to  affect  them  deeply  and  variously. 

The  first  and  in  many  respects  the  most  interesting  of  these  an- 
cient modes  of  proceeding  is  the  Legis  Actio  Sacramenti,  the  un- 
doubted parent  of  all  the  Roman  Actions,  and  consequently  of 
most  of  the  civil  remedies  now  in  use  in  the  world.  Several  years 
ago  I  pointed  out  ('  Ancient  Law  '),  that  the  technical  formalities 
appeared  plainly,  upon  inspection,  to  be  a  dramatisation  of  the 
Origin  of  Justice.  'Two  armed  men,'  I  said,  'are  wrangling 
about  some  disputed  property.  The  Prsetor,  vir  yietate  gravis, 
happens  to  be  going  by  and  interposes  to  stop  the  contest.  The 
disputants  state  their  case  to  him,  and  agree  that  he  shall  arbitrate 
between  them,  it  being  arranged  that  the  loser,  besides  resigning 
the  subject  of  the  quarrel,  shall  pay  a  sum  of  money  to  the  umpire 
as  remuneration  for  his  trouble  and  loss  of  time.'  'This  inter- 
pretation,' I  then  added,  'would  be  less  plausible  than  it  is,  were 
it  not  that,  by  a  surprising  coincidence,  the  ceremony  described 
by  Gains  as  the  imperative  course  of  proceeding  in  a  Legis  Actio 
is  substantially  the  same  with  one  of  the  two  subjects  which  the 
God  Hephaestus  is  described  by  Homer  as  moulding  into  the  First 
Compartment  of  the  Shield  of  Achilles.'  Since  these  passages  were 
wTitten,  the  labours  of  more  recent  enquirers  enable  us  to  class  this 
judicial  picture  of  the  origin  of  one  great  institution,  Civil  Justice, 
with  other  pictorial  or  dramatic  representations  of  forgotten  prac- 
tices which,  in  various  parts  of  the  world,  survive  in  the  forms  at- 
tending institutions  of  at  least  equal  importance.  It  may  be 
seen,  for  example,  from  Mr.  McLennan 's  work  on  'Primitive  j\Iar- 
riage,'  that  a  large  part  of  mankind  still  simulate  in  their  marriage 
ceremonies  the  carrying  off  the  bride  by  violence,  and  thus  pre- 
serve the  memory  of  the  reign  of  force  which,  at  all  events  as  be- 
tween tribe  and  tribe,  preceded  everywhere  the  reign  of  law.  It  is 
not  at  the  same  time  to  be  supposed  that  these  long-descended 
dramas  imply  or  ever  implied  any  disrespect  for  the  institutions 
with  which  they  are  associated.  In  all  probability  they  intention- 
ally commemorate  not  the  evil  but  the  remedy  for  the  evil :  and, 
until  they  degenerate  into  meaningless  usages,  they  are  enacted, 
not  in  honour  of  brute  force,  but  in  honour  of  the  institutions 
which  superseded  it,  ]\Iarriage  and  Civil  Justice. 

Almost  every  gesture  and  almost  every  set  of  formal  words  in 
the  Legis  Actio  Sacramenti  symbolise  something  which,  in  some 


588  PROCEDURE  [Part  IV. 

part  of  the  world  or  another,  in  some  Aryan  society  or  another,  has 
developed  into  an  important  institution.  The  claimant  places 
his  hand  on  the  slave  or  other  subject  of  dispute,  and  this  grasp 
of  the  thing  claimed,  which  is  reproduced  in  the  corresponding 
procedure  of  the  ancient  Germans  and  which,  from  them,  was  con- 
tinued in  various  modified  forms  far  down  into  the  ^Middle  Ages, 
is  an  early  example  of  that  Demand  before  action  on  which  all 
civilised  systems  of  law  insist.  The  wand,  which  the  claimant 
held  in  his  hand,  is  stated  by  Gains  to  have  represented  a  spear, 
and  the  spear,  the  emblem  of  the  strong  man  armed,  served  as  the 
symbol  of  property  held  absolutely  and  against  the  world,  not  only 
in  the  Roman  but  in  several  other  Western  societies.  The  pro- 
ceedings included  a  series  of  assertions  and  reassertions  of  right  by 
the  parties,  and  this  formal  dialogue  was  the  parent  of  the  Art  of 
Pleading.  The  quarrel  between  plaintiff  and  defendant,  which 
was  a  mere  pretence  among  the  Romans,  long  remained  a  reality 
in  other  societies,  and,  though  its  theory  was  altered,  it  survived 
in  the  Wager  of  Battle  which,  as  an  English  institution,  was  only 
finally  abolished  in  our  fathers'  day.  The  interposition  of  the 
Prsetor  and  the  acceptance  of  his  mediation  expanded  into  the  Ad- 
ministration of  Justice  in  the  Roman  State,  one  of  the  most  power- 
ful of  instrumentalities  in  the  historical  transformation  of  the 
civilised  world.  The  disputants  staked  a  sum  of  money  —  the 
Sacramentum,  from  which  the  proceedings  took  their  name  —  on 
the  merits  of  their  quarrel,  and  the  stake  went  into  the  public 
exchequer.  The  money  thus  wagered,  which  appears  in  a  singu- 
larly large  number  of  archaic  legal  systems,  is  the  earliest  repre- 
sentative of  those  Court-fees  which  have  been  a  more  considerable 
power  in  legal  history  than  historians  of  law  are  altogether  inclined 
to  admit.  The  very  spirit  in  which  a  Legis  Actio  was  conducted 
was  that  which,  in  the  eyes  of  laymen,  has  been  most  character- 
istic of  lawyers  in  all  historical  times.  If,  says  Gains,  you  sued  by 
Legis  Actio  for  injury  to  your  vines,  and  called  them  vines,  you 
would  fail ;  you  must  call  them  trees,  because  the  text  of  the 
Twelve  Tables  spoke  only  of  trees.  The  ancient  collection  of 
Teutonic  legal  formulas,  known  as  the  IMalberg  Gloss,  contains 
provisions  of  precisely  the  same  character.  If  you  sue  for  a  bull, 
you  will  miscarry  if  you  describe  him  as  a  bull ;  you  must  give  him 
his  ancient  juridical  designation  of  'leader  of  the  herd.'  You 
must  call  the  forefinger  the  '  arrow '-finger,  the  goat  the  'browser 
upon  leeks.'  There  are  lawyers  alive  who  can  recollect  when  the 
English  system  of  Special  Pleading,  now  just  expiring,  was  applied 


Chap.  XXXI,   §  3.]         PRIMITIVE    LEGAL   REMEDIES  589 

upon  principles  not  remotely  akin  to  these  and  historically  de- 
scended from  them. 

The  description  given  by  Gains  of  the  Legis  Actio  Sacramenti  is 
followed  by  a  lacuna  in  the  manuscript.  .  .  .  The  text  of  the  treat- 
ise begins  again  with  a  description  of  the  Condictio,  which  is  said 
by  Gains  to  have  been  created,  but  which  is  believed  to  have  been 
only  regulated,  by  two  Roman  statutes  of  the  sixth  century  before 
Christ  —  the  Lex  Silia  and  the  Lex  Calpurnia.  The  Condictio, 
which  afterwards  developed  into  one  of  the  most  useful  of  the 
Roman  actions,  originally  derived  its  name  from  a  notice  which 
the  plaintiff  gave  the  defendant  to  appear  before  the  Prsetor  in 
thirty  days,  in  order  that  a  Judex  or  referee  might  be  nominated  ; 
and  immediately  (as  I  myself  think)  on  this  notice  being  given, 
the  parties  entered  into  a  'sponsio'  and  'restipulatio,'  that  is,  they 
laid  a  formal  wager  (distinct  from  the  stake  called  Sacramentum) 
on  the  justice  of  their  respective  contentions.  The  sum  thus 
staked,  which  was  always  equal  to  a  third  of  the  amount  in  dispute, 
W'Cnt  in  the  end  to  the  successful  litigant,  and  not,  like  the  Sacra- 
mentum, to  the  State.  Lawyers  wondered.  Gains  tells  us,  that 
such  an  action  should  be  needed  when  property  could  have  been 
recovered  by  the  older  and  unmodified  procedure.  Many  technical 
answers  to  this  question  have  been  given  by  modern  commentators 
on  Roman  law,  but  we  will  see  whether  a  better  explanation  of  it 
cannot  be  obtained  by  approaching  it  from  another  side. 

Gains,  leaving  the  Condictio,  proceeds  to  discuss  two  of  the 
Legis  Actiones,  the  Manns  Injectio  and  the  Pignoris  Capio, 
which  cannot  be  made  to  square  in  any  way  with  oftr  modern  con- 
ception of  an  action.  The  Manus  Injectio  is  expressly  stated  to 
have  been  originally  the  Roman  mode  of  execution  against  the 
person  of  a  judgment  debtor.  It  has  considerable  historical  in- 
terest, for  it  was  undoubtedly  the  instrument  of  the  cruelties  prac- 
tised by  the  Roman  aristocracy  on  their  defaulting  plebeian  debtors, 
and  thus  it  gave  the  first  impetus  to  a  series  of  popular  movements 
which  affected  the  whole  history  of  the  Roman  Commonwealth. 
The  Pignoris  Capio  also  possibly  under  a  slightly  altered  name, 
was  a  mode  of  execution  in  later  times  against  property  after 
decree ;  but  this  was  not  its  original  purpose  as  a  Legis  Actio.  It 
was  at  first  a  wholly  extra-judicial  proceeding.  The  person  who 
proceeded  by  it  seized  in  certain  cases  the  goods  of  a  fellow-citizen, 
against  whom  he  had  a  claim,  but  against  whom  he  had  not  insti- 
tuted a  suit.  The  power  of  seizure  could  be  exercised  by  soldiers 
against  public  officers  bound  to  supply  them  with  pay,  horse,  or 


590  PROCEDURE  [Part  IV. 

forage ;  and  it  could  also  be  resorted  to  by  the  seller  of  a  beast  for 
sacrifice  against  a  defaulting  purchaser.  It  was  thus  confined  to 
claims  of  great  urgency  or  of  highly  sacred  obligation ;  but  it  was 
afterwards  extended  to  demands  for  overdue  arrears  of  public 
revenue.  I  am  indebted  to  Mr.  Poste  for  the  observation  that  the 
ideal  institutions  of  Plato's  Laws  include  something  strongly  re- 
sembling the  Roman  Pignoris  Capio ;  and  here  again  it  is  a  remedy 
for  breach  of  public  duties  connected  with  military  service  or  reli- 
gious observance. 

I  take  the  Pignoris  Capio  as  the  immediate  starting-point  of  all 
which  I  am  about  to  say  on  the  subject  of  Ancient  Civil  Procedure. 
First  of  all  let  us  ask  whether  Gains  himself  gives  us  any  hint  of  its 
meaning  and  significance  in  the  primitive  Roman  system.  The 
clue  is  slender,  but  it  seems  to  me  sufficiently  traceable  in  the 
statement  that  the  Pignoris  Capio  could  be  resorted  to  in  the  ab- 
sence of  the  Prsetor  and  generally  in  that  of  the  person  under  lia- 
bility, and  also  that  it  might  be  carried  out  even  when  the  Courts 
were  not  sitting. 

Let  us  go  back  for  a  moment  to  the  parent  Legis  Actio  —  the 
L.  A.  Sacramenti.  Its  venerable  forms  presuppose  a  quarrel  and 
celebrate  the  mode  of  settling  it.  It  is  a  passing  arbitrator  whose 
interposition  is  simulated  by  the  Prsetor.  But  suppose  there  is 
no  arbitrator  at  hand.  What  expedient  for  averting  bloodshed 
remains,  and  is  any  such  expedient  reflected  in  that  ancient  pro- 
cedure which,  by  the  fact  of  its  existence,  implies  that  the  shedding 
of  blood  has  somehow  been  prevented  ? 

I  dare  say  I  shall  at  the  outset  appear  to  be  making  a  trivial 
remark  when  I  say  that  one  method  of  gaining  the  object  is  to  lay 
a  wager.  Even  now  this  is  one  of  the  commonest  ways  of  postpon- 
ing a  dispute  as  to  a  matter  of  fact,  and  the  truth  is  that  the  ten- 
dency to  bet  upon  results  lies  extremely  deep  in  human  nature,  and 
has  grown  up  with  it  from  its  remote  infancy.  It  is  not  everybody 
who,  when  his  blood  is  hot,  will  submit  to  have  "a  quarrel  referred 
to  a  third  person  present,  much  less  to  a  third  person  absent ;  but 
he  will  constantly  do  so,  if  he  lays  a  wager  on  it,  and  if,  besides 
being  found  in  the  right,  he  has  a  chance  of  receiving  the  amount 
staked.  And  this  I  suppose  —  differing,  I  own,  from  several  high 
authorities  —  to  be  the  true  significance  of  the  Sponsio  and 
Restipulatio,  which  we  know  to  have  been  of  the  essence  of  the 
ancient  Roman  Condictio,  and  of  the  agreement  to  appear  before 
the  Prsetor  in  thirty  days.  The  Legis  Actio  Sacramenti  assumes 
that  the  quarrel  is  at  once  referred  to  a  present  arbitrator  ;  the  Con- 


Chap.  XXXI,  §3.]         PRIMITIVE    LEGAL  REMEDIES  591 

dictio  that  the  reference  is  to  the  decision  of  an  arbitrator  after 
thirty  days'  interval,  but  meantime  the  parties  have  entered  into 
a  separate  wager  on  the  merits  of  their  dispute.  We  know  that  the 
liabihty  to  an  independent  penalty  attached  to  the  suitor  by  Con- 
dictio  even  when  it  had  become  one  of  the  most  important  Roman 
actions,  and  that  it  was  still  exacted  in  the  age  of  Cicero. 

There  is  yet  another  primitive  contrivance  by  which,  in  the 
absence  of  a  present  arbitrator,  a  quarrel  may  be  prevented  from 
issuing  in  bloodshed.  The  claimant  willing  to  go  to  arbitration 
may,  in  the  absence  of  his  adversary,  or  if  he  be  the  stronger,  in 
his  presence,  take  forcible  possession  of  his  moveable  property  and 
detain  it  till  he  too  submits.  I  believe  this  to  have  been  the  true 
primitive  office  of  the  Pignoris  Capio,  though  the  full  evidence  of 
my  opinion  will  not  be  before  you  till  I  have  tracked  the  same 
institution  through  the  twilight  of  other  legal  systems.  Among 
the  Romans,  even  at  the  date  of  the  Twelve  Tables,  it  had  become 
(to  employ  Mr.  Tylor's  phrase)  a  mere  survival,  confined  to  cases 
when  the  denial  of  justice  was  condemned  by  superstition  or  by  a 
sense  of  the  sternest  public  emergency;  and  this  was  a  conse- 
quence of  the  exceptionally  rapid  development  of  Roman  law  and 
procedure,  and  of  the  exceptionally  early  date  at  which  the  Roman 
tribunals  became  the  organs  of  the  national  sovereignty.  You 
will  see  hereafter  how  much  reason  there  is  for  thinking  that  the 
progress  of  most  societies  towards  a  complete  administration  of 
justice  was  slow  and  gradual,  and  that  the  Commonwealth  at  first 
interfered  through  its  various  organs  rather  to  keep  order  and  see 
fair  play  in  quarrels  than  took  them,  as  it  now  does  always  and 
everywhere,  into  its  own  hands.  To  this  period,  long  forgotten 
among  the  Romans,  those  peculiar  rules  pointed  back  which  sur- 
vived along  with  the  Pignoris  Capio,  and  which  provided  for  its 
exercise  out  of  court  and  during  the  judicial  vacation. 

I  turn  to  the  Teutonic  societies  for  vestiges  of  a  practice  similar 
to  that  which  the  Romans  called  Pignoris  Capio.  They  seem  to 
be  quite  unmistakeable  in  that  portion  of  our  own  English  law 
which  is  concerned  with  the  power  of  Distraint  or  Distress  and 
with  the  connected  legal  remedy  known  as  Replevin.  The  exam- 
ples of  the  right  to  distrain  another  man's  property  which  are  most 
familiar  to  you  are,  I  dare  say,  the  landlord's  right  to  seize  the 
goods  of  his  tenant  for  unpaid  rent,  and  the  right  of  the  lawful 
possessor  of  land  to  take  and  impound  stray  beasts  which  are  dam- 
aging his  crops  or  soil.  The  process  by  which  the  latter  right  is 
made  effectual  retains  far  more  of  the  ancient  institution  than  does 


592  PROCEDURE  [Part  IV. 

distress  for  rent.  For  the  peculiar  power  of  the  landlord  to  dis- 
train for  rent,  while  it  remains  an  extrajudicial  remedy,  has  been 
converted  into  a  complete  remedy  of  its  kind  by  a  series  of  statutes 
comparatively  modern.  It  has  always,  however,  been  the  theory 
of  the  most  learned  English  lawyers  that  distress  is  in  principle  an 
incomplete  remedy ;  its  primary  object  is  to  compel  the  person 
against  whom  it  is  properly  employed  to  make  satisfaction.  But 
goods  distrained  for  rent  are  nowadays  not  merely  held  as  a  secur- 
ity for  the  landlord's  claim;  they  are  ultimately  put  up  for  sale 
with  certain  prescribed  formalities,  the  landlord  is  paid  out  of  the 
proceeds,  and  the  overplus  is  returned  to  the  tenant.  Thus  the 
proceeding  has  become  merely  a  special  method  by  which  payment 
of  rent,  and  certain  other  payments  which  are  placed  on  the  same 
footing,  are  enforced  without  the  help  of  a  Court  of  Justice.  But 
the  distraint  of  cattle  for  damage  still  retains  a  variety  of  archaic 
features.  It  is  not  a  complete  remedy.  The  taker  merely  keeps 
the  cattle  until  satisfaction  is  made  to  him  for  the  injury,  or  till 
they  are  returned  by  him  on  an  engagement  to  contest  the  right  to 
distrain  in  an  action  of  Replevin. 

The  practice  of  Distress  —  of  taking  nams,  a  word  preserved  in 
the  once  famous  law-term  withernam  —  is  attested  by  records  con- 
siderably older  than  the  Conquest.  There  is  reason  to  believe  that 
anciently  it  was  resorted  to  in  many  more  cases  than  our  oldest 
Common-Law  authorities  recognise  ;  but  about  the  reign  of  Henry 
the  Third,  when  it  was  confined  to  certain  specific  claims  and 
wrongs,  the  course  of  the  proceeding  was  as  follows :  The  person 
assuming  himself  to  be  aggrieved  seized  the  goods  (which  anciently 
were  almost  always  the  cattle)  of  the  person  whom  he  believed  to 
have  injured  him  or  failed  in  duty  towards  him.  He  drove  the 
beasts  to  a  pound,  an  enclosed  piece  of  land  reserved  for  the  pur- 
pose, and  generally  open  to  the  sky.  Let  me  observe  in  passing 
that  there  is  no  more  ancient  institution  in  the  country  than  the 
Village-Pound.  It  is  far  older  than  the  King's  Bench,  and  prob- 
ably older  than  the  Kingdom.  While  the  cattle  were  on  their  way 
to  the  pound  the  owner  had  a  limited  right  of  rescue  which  the  law 
recognised,  but  which  he  ran  great  risk  in  exercising.  Once 
lodged  within  the  enclosure,  the  impounded  beasts,  when  the 
pound  was  uncovered,  had  to  be  fed  by  the  owner  and  not  by  the 
distrainor ;  nor  was  the  rule  altered  till  the  present  reign.  The 
distrainor's  part  in  the  proceedings  ended  in  fact  with  the  im- 
pounding ;  and  we  have  to  consider  what  courses  were  thereupon 
open  to  the  person  whose  cattle  had  been  seized.     Of  course  he 


Chap.  XXXI,  §  3.]         PRIMITIVE   LEGAL  REMEDIES  593 

might  submit  and  discharge  the  demand.  Or  he  might  tender 
security  for  its  acquittah  Or  again  he  might  remain  obstinate  and 
leave  his  beasts  in  the  pound.  It  might  happen,  however,  that  he 
altogether  denied  the  distrainor's  right  to  distrain,  or  that  the 
latter,  on  security  being  tendered  to  him  for  the  adjustment  of  his 
claim,  refused  to  release  the  cattle.  In  either  of  these  cases  the 
cattle-owner  (at  least  at  the  time  of  which  we  are  speaking)  might 
either  apply  to  the  King's  Chancery  for  a  writ  commanding  the 
Sheriff  to  'make  replevin,'  or  he  might  verbally  complain  himself 
to  the  Sheriff,  who  would  then  proceed  at  once  to  'replevy.'  The 
process  denoted  by  this  ancient  phrase  consisted  of  several  stages. 
The  Sheriff  first  of  all  demanded  a  view  of  the  impounded  cattle  ; 
if  this  were  refused,  he  treated  the  distrainor  as  ha\'ing  committed 
a  violent  breach  of  the  King's  peace,  and  raised  the  hue  and  cry 
after  him.  If  the  cattle  (as  doubtless  constantly  was  the  case) 
had  been  driven  to  a  distance  and  out  of  his  jurisdiction,  the  Sheriff 
sought  for  cattle  of  the  distrainor  and  seized  them  to  double  the 
value  of  the  beasts  which  were  not  forthcoming  —  the  '  taking  in 
withernam '  of  old  English  law.  In  more  peaceable  times,  however, 
and  among  law-abiding  people,  the  deputy  of  the  Crown  was  al- 
lowed to  see  the  cattle,  which  he  immediately  returned  to  their 
original  owner  on  a  pledge  to  abide  by  the  decision  of  a  Court  of 
Justice.  A  day  was  then  appointed  for  the  trial,  which  took  place 
with  the  proceeding  well  known  to  lawyers  as  the  Action  of  Re- 
plevin. A  great  deal  of  technical  learning  has  clustered  round  it, 
but  for  our  purposes  it  is  enough  to  say  that  the  plaintiff  in  the 
action  was  the  owner  of  the  distrained  cattle  and  the  defendant 
was  the  distrainor. 

The  comparative  antiquity  of  the  various  steps  in  the  procedure 
are  not,  I  think,  difficult  to  detect.  Nothing  can  be  more  archaic 
than  the  picture  presented  by  its  more  venerable  details.  The 
seizure  of  the  cattle,  the  rescue  and  the  counter-seizure,  belong 
to  the  oldest  practices  of  mankind.  We  were  carried  back,  by  the 
Legis  Actio  Sacramenti  of  the  Romans,  to  a  sudden  fight  over  dis- 
puted property  barely  stopped  by  a  casual  passer-by.  Here,  not 
in  a  city-community,  but  among  the  ancient  legal  forms  of  a  half- 
pastoral,  half-agricultural  people,  we  come  upon  plain  traces  of  a 
foray.  But  the  foray  which  survives  in  the  old  Law  of  Distress 
is  not,  like  the  combat  of  the  ancient  Roman  Action,  a  mere  dra- 
matic representation.  Up  to  a  certain  point  it  is  a  reality,  and  the 
most  probable  account  of  its  origin  is  that  it  is  a  genuinely  disor- 
derly proceeding  which  the  law  steps  in  to  regulate.     You  will  see 


594  PROCEDURE  [Part  IV. 

presently  that  there  are  other  independent  reasons  for  thinking 
that  some  of  the  earhest  interferences  of  the  power  which  we  call 
the  Law,  the  State,  or  the  King,  with  high-handed  violence  con- 
sisted, neither  in  wholly  forbidding  it  nor  in  assuming  active  juris- 
diction over  the  quarrel  which  provoked  it,  but  in  limiting  it,  pre- 
scribing forms  for  it,  or  turning  it  to  new  purposes.  Thus  the  next 
series  of  incidents  in  the  practice  of  distraint  —  the  impounding, 
the  stress  laid  upon  pledge  or  security,  and  the  acknowledgment 
of  continuing  ownership  which  is  implied  in  the  liability  of  the  per- 
son distrained  upon  to  feed  the  cattle,  and  in  the  rule  that  the  dis- 
trainor shall  not  work  them  —  belong  to  a  newer  range  of  ideas 
which  dictate  the  first  attempts  to  moderate  reprisals  and  regulate 
revenge  for  wrong.  Distress  now  becomes  a  semi-orderly  contriv- 
ance for  extorting  satisfaction.  Many  vestiges  of  this  ancient 
function  remain.  It  has  been  observed  by  Blackstone  and  others 
that  the  modified  exemption  of  certain  classes  of  goods  from  dis- 
traint —  plough-oxen,  for  example,  and  tools  of  trade  —  was  not 
in  its  origin  the  least  intended  as  a  kindness  to  the  owner.  It  was 
entailed  by  the  very  nature  of  the  whole  proceeding,  since  without 
the  instruments  of  tillage  or  handicraft  the  debtor  could  never 
pay  his  debt.  A  passage  in  the  'Dialogus  de  Scaccario'  (ii.  14), 
prescribing  the  order  in  which  the  goods  of  the  King's  debtors  are 
to  be  sold,  strongly  bears  out  this  view. 

Latest  in  the  order  of  proceeding,  and  latest  probably  in  date, 
came  the  direct  interposition  of  the  State.  The  King  steps  in, 
first,  in  what  we  should  now  call  his  administrative  capacity.  His 
administrative  deputy,  the  Sheriff,  on  complaint  made  by  their 
owner,  follows  up  the  cattle,  demands  a  sight  of  them,  raises  the 
hue  and  cry  if  it  be  refused,  and  seizes  twice  their  number  if  the 
beasts  have  been  driven  away.  Even  when  he  obtains  his  view, 
he  can  do  nothing  unless  the  cattle-owner,  denying  the  right  of 
his  adversary  to  distrain,  is  prepared  with  security  that  he  will 
try  the  question  between  them  in  a  Court  of  Justice.  Thus  tardily 
does  that  power  make  its  appearance  which  according  to  our  no- 
tions should  long  since  have  appeared  on  the  scene,  the  judicial 
poAver  of  the  Commonwealth.  Its  jurisdiction  is  obviously  ac- 
quired through  the  act  of  the  Sheriff  in  restoring  the  cattle  upon 
pledge  given.  The  distrainor  has  lost  his  material  security,  the 
cattle.  The  owner  of  the  cattle  has  become  personally  bound. 
And  thus  both  are  placed  under  a  compulsion  which  drives  them 
in  the  end  to  a  judicial  arbitration. 


Chap.  XXXI,  §  3.]  PRIMITIVE    LEGAL   REMEDIES  595 

The  information  furnished  to  us  respecting  this  primitive  pro- 
cedure by  the  various  bodies  of  Continental  Teutonic  law  known 
collectively  as  the  Leges  Barbarorum  is  of  a  very  interesting  kind. 
Almost  all  of  them  contain  references  to  Pignoratio  or  distraint  of 
goods.  The  Visigothic  law  expressly  prohibits  it ;  and,  at  the 
other  end  of  the  scale,  the  Lombardic  law  has  a  trace  of  that  licence 
of  distress  which  has  survived  in  the  English  Common-Law  and 
permits  it  after  simple  demand  of  payment.  But  the  Salic  law, 
which  the  most  learned  Germans  now  believe  to  have  been  drawn 
up  at  some  period  between  the  time  at  which  Tacitus  wrote  and 
the  time  at  which  the  Franks  broke  into  the  Empire,  contains  a 
series  of  very  peculiar  and  instructive  provisions  on  the  subject, 
which  have  been  for  the  first  time  fully  interpreted  by  Sohm. 
LTnder  this  system.  Distress  is  not  yet  a  judicial  remedy  ;  it  is  still 
an  extrajudicial  mode  of  redress,  but  it  has  been  incorporated  with 
a  regular  and  highly  complex  procedure.  A  succession  of  notices 
have  to  be  given  in  solemn  form  by  the  complainant  to  the  person 
of  whom  he  complains,  and  whose  property  he  proposes  to  seize. 
Nor  can  he  proceed  to  seizure  until  he  has  summoned  this  person 
before  the  Popular  Court,  and  until  the  Popular  Officer  of  the 
Court,  the  Thunginus,  has  pronounced  a  formula  licensing  dis- 
traint. Then,  and  not  till  then,  he  can  make  what  we  should  call 
a  distress  upon  his  adversary.  It  seems  quite  clear  that,  before  the 
Conquest,  attempts  were  made  in  England  to  narrow  the  liberty 
of  distraint  by  the  same  class  of  restrictions  which  we  find  in  the 
Salic  Law  and  the  allied  Teutonic  bodies  of  usage.  These  provi- 
sions have  their  close  counterpart  in  the  ordinance  of  Canute  that 
no  man  is  to  take  nams  unless  he  has  demanded  right  three  times 
in  the  Hundred ;  if  he  obtain  no  justice  the  third  time,  he  is  to  go 
to  the  Shire-gemot ;  the  shire  is  to  appoint  him  a  fourth  time,  and, 
if  that  fails,  he  may  take  the  distress. 

It  is  to  be  remarked  that  the  process  of  the  Salic  Law  which  an- 
swers to  our  distress  is  especially  a  remedy  in  certain  cases  of  breach 
of  contract.  Distraint,  the  seizing  of  nams,  was  certainly  employed 
to  enforce  a  similar  class  of  demands  under  old  English  law  before 
the  Conquest;  and  the  practice  seems  to  have  been  known  in 
Bracton's  day,  though  the  brevity  of  his  notice  does  not  permit  us 
to  understand  fully  its  course  and  character.  In  this  respect  the 
Pignoration  of  the  Continental  Teutonic  law  is  more  archaic  than 
the  distress  with  which  we  are  familiar  in  England,  since  the  frag- 
ment of  the  system  which  has  survived  in  our  Common-law  (and 
it  is  to  this  that  it  probably  owes  its  survival)  was  from  the  first  pre- 


59G  PROCEDURE  [Part  IV. 

eminently  a  remedy  by  which  the  lord  compelled  his  tenants  to 
render  him  their  services.  But  on  the  other  hand  it  is  interesting 
to  observe  that  our  English  distress  is  in  some  particulars  of  a 
more  archaic  character  than  the  corresponding  compulsory  process 
of  the  Leges  Barbarorum.  Thus  notice  of  the  intention  to  distrain 
was  never  in  England  essential  to  the  legality  of  distress  (Trent  v. 
Hunt,  9  Exch.  Rep.  20),  although  statute-law  renders  it  necessary 
to  make  a  sale  of  the  distrained  property  legal ;  and  again,  in  the 
oldest  ascertainable  state  of  our  Common-law,  though  distraint 
sometimes  followed  a  proceeding  in  the  lord's  Court,  yet  it  did  not 
necessarily  presuppose  or  require  it. 

It  should  be  understood  that  the  Frankish  procedure  was  com- 
pletely at  the  disposal  of  the  complainant.  It  is  not  a  strictly 
judicial  procedure,  but  rather  a  procedure  regulating  extrajudicial 
redress.  If  the  complainant  observes  the  proper  forms,  the  part 
of  the  Court  in  licensing  seizure  is  purely  passive.  Even  after  the 
exhaustive  examination  which  this  part  of  the  Salic  Law  has  under- 
gone from  Professor  Sohm,  it  is  very  difficult  to  say  whether  at 
any  point  of  the  procedure  the  defendant  had  the  opportunity  of 
putting  in  a  substantial  defence ;  but  it  seems  certain  that,  when- 
ever he  could  do  this,  he  appeared  virtually  as  a  plaintiff  like  the 
distrainee  in  our  Action  of  Replevin,  and  there  is  no  doubt  that, 
if  he  submitted  or  was  unsuccessful  in  attacking  the  proceedings 
of  the  other  side,  he  paid  not  only  the  original  debt  but  various 
additional  penalties  entailed  by  neglect  to  comply  with  previous 
notices  to  discharge  it.  Such  a  procedure  seems  to  us  founded  on 
the  now  monstrous  assumption  that  plaintiffs  are  always  in  the 
right  and  defendants  always  in  the  wrong.  Yet  the  assumption 
would  not  perhaps  have  struck  the  earliest  authors  of  legal  improve- 
ment as  altogether  monstrous,  nor  could  they  have  quite  compre- 
hended the  modern  principle  which  compels  the  complainant  to 
establish  at  all  events  a  lyrima  facie  case.  With  them,  the  man 
most  likely  to  be  in  the  right  would  appear  to  be  the  man  who  faced 
the  manifold  risks  attending  the  effort  to  obtain  redress,  the  man 
who  complained  to  the  Popular  Assembly,  the  man  who  cried  for 
justice  to  the  King  sitting  in  the  gate.  It  is  only  when  violent 
wrong  has  ceased  to  be  rife,  when  the  dangers  of  contesting  the 
oppressions  of  powerful  men  have  become  insignificant,  when  the 
law  has  been  long  and  regularly  administered  according  to  technical 
procedure,  that  unjust  claims  are  seen  to  be  at  least  as  common 
as  unjust  refusals  to  satisfy  them.  In  one  particular  case,  the  com- 
plaint of  the  King,  the  old  assumption  that  complainants  are  pre- 


Chap.  XXXI,  §  3.]         PRIMITIVE    LEGAL   REMEDIES  597 

sumably  in  the  right  was  kept  long  alive  among  us,  and  had  much 
to  do  with  the  obstinate  dislike  of  law^'ers  to  allowing  prisoners 
to  be  defended  by  Counsel. 

Gains,  speaking  of  the  Leges  Actiones  generally,  observes  that 
'they  fell  into  discredit,  because  through  the  excessive  subtlety 
of  the  ancient  lawyers,  things  came  to  such  a  pass  that  he  w^ho 
committed  the  smallest  error  failed  altogether.' 

Blackstone,  many  centuries  afterwards,  has  the  following  remark 
on  the  English  Law  of  Distress  :  '  The  many  particulars  which  at- 
tend the  taking  of  a  distress  used  formerly  to  make  it  a  hazardous 
kind  of  proceedings;  for,  if  any  one  irregularity  was  committed, 
it  vitiated  the  whole.' 

I  quote  these  passages,  not  only  on  account  of  the  curious  simi- 
larity of  language  between  two  writers  of  whom  the  later  could  not 
possibly  have  read  the  earlier,  but  because  the  excessive  techni- 
cality of  ancient  law  which  they  both  notice  goes  some  way  to 
explain  the  severity  and  onesidedness  of  the  old  Teutonic  procedure. 
The  power  of  seizing  a  man's  property  extrajudicially  in  satisfac- 
tion of  your  demand  was,  as  Professor  Sohm  justly  remarks,  a 
sort  of  two-edged  sword.  You  might  bring  your  adversary  to  the 
ground  by  it,  but  you  were  extremely  likely  to  injure  yourself. 
For,  unless  the  complainant  who  sought  to  distrain  went  through  all 
the  acts  and  words  required  by  the  law  with  the  most  rigorous  accu- 
racy, he  in  his  turn,  besides  failing  in  his  object,  incurred  a  variety 
of  penalties,  which  could  be  just  as  harshly  exacted  as  his  own  origi- 
nal demand.  The  difficulty  of  putting  the  procedure  into  op- 
eration thus  at  once  made  disputants  cautious  in  resorting  to  it, 
and  seemed  to  men  in  general  to  compensate  for  its  inherent  in- 
equitableness.  This  consideration,  however,  though  it  explains 
in  part  how  the  harsh  ancient  law  reconciled  itself  to  the  sense 
of  right,  is  not  by  itself  sufficient  to  account  for  the  form  which  it 
assumed  in  the  Teutonic  Codes,  or  for  the  vitality  of  a  portion  of 
it  amid  our  own  institutions. 

I  cannot  doubt  that  the  practice  which  I  have  called  by  the 
general  name  of  Distress  kept  its  place  in  ancient  Teutonic  law 
partly  as  a  mere  '  survival. '  I  have  already  insisted  that  one  great 
characteristic  of  the  primitive  ages  was  the  fewness  of  human 
ideas.  Societies,  just  emerging  from  the  savage  state,  had  been 
used  to  associate  redress  of  wrong  with  the  seizure  of  a  wrong- 
doer's goods,  and  they  were  unable  mentally  quite  to  disconnect 
the  two  even  when  they  began  to  regulate  the  practice.  They 
did  not,  therefore,  supersede  distress  by  a  wholly  new  system, 


598  PROCEDURE  [Part  IV. 

but  engrafted  it  on  a  later  procedure,  which  occasionally  took  the 
form  so  curiously  preserved  in  its  main  features  to  our  own  day 
by  the  English  Common-law,  but  which  at  a  relatively  later  date 
and  more  generally  may  be  believed  to  have  shaped  itself  on  the 
model  of  the  rules  observed  by  the  Salian  Franks. 

It  is  not  possible  to  explain  all  survivals  by  some  convenience 
which  they  incidentally  serve.  Some  have  undoubtedly  been  con- 
tinued by  superstition,  some  by  mere  habit.  But  those  relics  of 
ancient  thought  and  conduct  which  have  been  kept  alive  longest 
have  generally  had  an  usefulness  of  their  ow^n.  Here  the  private 
redress  of  wTong,  taken  into  the  legal  procedure,  served  to  compel 
the  appearance  of  the  defendant  and  his  submission  to  jurisdiction 
at  a  time  when  judicial  authority  was  yet  in  its  infancy,  and  when 
Courts  of  Justice  could  not  as  yet  completely  and  regularly  com- 
mand the  aid  of  sovereign  power.  Gradually,  as  the  public  force, 
the  arm  of  the  State,  w^as  more  and  more  placed  at  the  disposal 
of  tribunals,  they  were  able  more  and  more  to  dispense  with  extra- 
judicial assistance.  In  the  state  of  Teutonic  law^  represented  by 
the  Frankish  Code,  we  find  a  specific  class  of  cases  tried  through- 
out judicially  (in  our  modern  sense  of  the  word)  from  the  initial 
stage  to  the  judgment ;  but  the  judgment  is  not  by  its  own  force 
operative.  If  the  defendant  has  expressly  promised  to  obey  it, 
the  Count  or  royal  deputy,  on  being  properly  summoned,  will  exe- 
cute it ;  but  if  no  such  promise  has  been  made,  the  plaintiff  has 
no  remedy  except  an  application  to  the  King  in  person.  No  long 
time,  however,  after  the  Franks  have  been  settled  within  the 
Empire,  we  find  that  another  step  has  been  taken  towards  the  ad- 
ministration of  justice  on  modern  principles,  and  now  the  royal 
deputy  will  execute  the  judgment  even  though  there  has  been  no 
promise  to  submit  to  it.  At  this  point  Distress  is  wholly  taken 
out  of  the  hands  of  private  litigants  and  extrajudicial  seizure  be- 
comes judicial  seizure.  The  change  is  obviously  a  result  of  the 
growing  vigour  of  Courts,  greatly  due  in  our  own  country  to  the 
development  of  royal  justice  at  the  expense  of  popular  justice. 
Still  English  judicial  proceedings  long  savoured  of  the  old  practices. 
Every  student  of  our  ancient  English  forms  of  proceeding  will 
recollect  on  what  small  apparent  provocation  the  King  constantly 
took  the  lands  of  the  defendant  into  his  hands  or  seized  his  goods, 
simply  to  compel  or  perfect  his  submission  to  the  royal  jurisdic- 
tion.  .   .   . 

The  comparison  of  the  various  Teutonic  bodies  of  law  suggests 
then  to  my  mind,  as  regards  those  systems,  the  following  conclu- 


Chap.  XXXI,  §  3.]         PRIMITIVE   LEGAL   REMEDIES  599 

sions  respecting  the  historical  development  of  the  remedies  which 
grew  out  of  the  savage  practice  of  violently  seizing  property  in 
redress  for  supposed  wrong.  Two  alternative  expedients  were 
adopted  by  nascent  law.  One  of  these  consisted  in  tolerating 
distraint  up  to  a  certain  point ;  it  was  connived  at  so  far  as  it  served 
to  compel  the  submission  of  defendants  to  the  jurisdiction  of  Courts, 
but  in  all  other  cases  it  was  treated  as  wilful  breach  of  the  peace. 
The  other  was  the  incorporation  of  distraint  with  a  regular  proced- 
ure. The  complainant  must  observe  a  great  number  of  forms  at 
his  peril ;  but  if  he  observes  them  he  can  distrain  in  the  end.  In  a 
still  more  advanced  condition  of  legal  ideas,  the  tribunals  take  the 
seizure  of  land  or  goods  into  their  own  hands,  using  it  freely  to 
coerce  defendants  into  submission.  Finally,  Courts  of  Justice 
resort  to  coercion  before  judgment  only  on  the  rarest  occasions, 
sure  as  they  at  last  are  of  the  effectiveness  of  their  process,  and  of 
the  power  which  they  hold  in  deposit  from  the  Sovereign  Common- 
wealth. 

II 

I  pass  from  the  early  law  of  procedure  in  the  Roman  and 
Teutonic  societies  to  the  corresponding  branch  of  another  ancient 
legal  system  which  has  been  only  just  revealed  to  us,  and  which, 
so  far  as  its  existence  was  suspected,  was  supposed  until  lately  to 
be  separated  by  peculiarly  sharp  distinctions  from  all  Germanic 
bodies  of  usage. 

Rather  more  than  half  of  the  Senchus  ]Mor  is  taken  up  with  the 
Law  of  Distress.  The  Senchus  Mor  pretends  to  be  a  Code  of  Irish 
law,  and  indeed  to  be  that  very  Code  which  was  prepared  under  the 
influence  of  St.  Patrick  upon  the  introduction  of  Christianity  into 
Ireland.  In  the  present  state  of  our  knowledge,  no  theory  can  be 
very  confidently  advanced  as  to  the  date  of  this  Brehon  compen- 
dium. It  may  be  that  some  such  revision  of  the  pre-Christian  law 
did  take  place ;  it  may  be  that  the  Brehon  lawyers  only  conjec- 
tured that  it  must  have  taken  place  ;  it  may  be  that  a  tract  of  un- 
usual dimensions  and  proportionately  valued  by  the  Brehon  law- 
school  which  happened  to  possess  it,  came  gradually  to  be  asso- 
ciated with  a  name  held  in  pre-eminent  honour  or  pre-eminently 
sacred,  a  process  of  which  there  are  believed  to  be  several  examples 
in  the  history  of  Eastern  jurisprudence.  These  doubts,  however, 
as  to  the  true  date  of  the  Senchus  ]\Ior  do  not  take  away  from  the 
significance  and  instructiveness  of  the  fact  that  in  a  volume  of  great 
antiquity,  of  undoubted  genuineness,  and  evidently  thought  by 


600  PROCEDURE  [Part  IV 

its  possessors  to  contain  all  that  was  important  in  the  law,  the 
Law  of  Distress,  now  an  extremely  subordinate  branch  of  our 
legal  system,  occupies  a  space  so  extraordinarily  large. 

I  borrow  from  the  Editor  of  the  First  Volume  of  '  Ancient  Laws 
of  Ireland,'  the  following  epitome  of  the  old  Irish  law  of  distress 
as  laid  down  in  the  Senchus  Mor  :  — 

'The  plaintiff  or  creditor,  having  first  given  the  proper  notice, 
proceeded,  in  the  case  of  a  defendant  or  debtor,  not  of  chieftain 
grade,  to  distrain.  If  the  defendant  or  debtor  were  a  person  of 
chieftain  grade,  it  was  necessary  not  only  to  give  notice,  but  also 
to  "fast  upon  him."  The  fasting  upon  him  consisted  in  going 
to  his  residence  and  waiting  there  for  a  certain  time  without  food. 
If  the  plaintiff  did  not  within  a  certain  time  receive  satisfaction 
for  his  claim,  or  a  pledge  therefor,  he  forthwith,  accompanied  by  a 
law-agent,  witnesses,  and  others,  seized  his  distress.  The  distress, 
when  seized,  was  in  certain  cases  liable  to  a  Stay,  which  was  a  period 
varying  according  to  fixed  rules,  during  which  the  debtor  received 
back  the  distress,  and  retained  it  in  his  own  keeping,  the  creditor 
having  a  lien  upon  it.  Such  a  distress  is  a  "distress  with  time"; 
but  under  certain  circumstances  and  in  particular  cases  an  "im- 
mediate distress"  was  made,  the  peculiarity  of  which  was  that 
during  the  fixed  period  of  the  Stay  the  distress  was  not  allowed 
to  remain  in  the  debtor's  possession,  but  in  that  of  the  creditor, 
or  in  one  of  the  recognised  greens  or  pounds. 

'If  the  debt  was  not  paid  by  the  end  of  the  Stay,  the  creditor 
took  away  the  distress,  and  put  it  in  a  pound.  He  then  served 
notice  of  the  distress  on  the  debtor  whom  he  had  distrained,  letting 
him  know  where  what  was  distrained  was  impounded.  The  dis- 
tress remained  in  the  pound  a  certain  period,  fixed  according  to  its 
nature  {dithini,  translated  "delay  in  pound,"  is  the  name  of  this 
period).  At  the  end  of  the  delay  in  pound,  the  Forfeiting  Time 
began  to  run,  during  which  the  distress  became  forfeited  at  the  rate 
of  three  "seds"  per  day,  until  entirely  forfeited.  If  the  entire 
value  of  the  distress  thus  forfeited  was  exactly  equal  to  the  original 
debt  and  the  subsequent  expenses,  the  debt  was  liquidated ;  if  it 
was  less  than  this,  a  second  distress  was  taken  for  the  difference ; 
and,  if  more,  the  overplus  was  returned.  All  this  proceeding  was 
managed  by  the  party  himself,  or  his  law-agent,  with  the  several 
witnesses  of  the  various  steps,  and  other  necessary  parties. 

'But  if,  instead  of  allowing  his  cattle  to  go  to  pound,  the  debtor 
gave  a  sufficient  pledge,  e.g.,  his  son,  or  some  article  of  value,  to  the 
creditor,  that  he  would  within  a  certain  time  try  the  right  to  the 


Chap.  XXXI,   §  3.]         PRIMITIVE    LEGAL    REMEDIES  601 

distress  by  law,  the  creditor  was  bound  to  receive  such  pledge. 
If  he  did  not  go  to  law,  as  he  so  undertook,  the  pledge  became  for- 
feited for  the  original  debt.  At  any  time,  up  to  the  end  of  the 
"dithim,"  the  debtor  could  recover  his  cattle  by  paying  the  debt 
and  such  expenses  as  had  been  incurred.  But,  if  he  neglected 
to  redeem  them  until  the  "ditim"  had  expired,  then  he  could  only 
redeem  such  as  were  still  unforfeited.' 

The  very  existence  in  ancient  Ireland  of  the  law  thus  sum- 
marised is  almost  enough  by  itself  to  destroy  those  reckless  theories 
of  race  which  assert  an  original,  inherent  difference  of  idea  and 
usage  between  Teuton  and  Celt.  The  Irish  system  of  Distress  is 
obviously,  in  all  essential  features,  the  Germanic  system.  It 
wears,  on  its  face,  a  very  strong  general  resemblance  to  the  corre- 
sponding branch  of  our  Common  Law ;  and  I  have  seen  some  very 
ingenious  attempts  to  account  for  the  differences  between  the  two 
by  suggestions  that  the  primitive  contour  of  the  English  law  of 
Distress  has  been  impaired.  The  object  of  such  speculations  is 
to  argue  for  the  direct  derivation  of  the  English  set  of  rules  from  the 
Celtic ;  but  it  does  not  appear  to  me  necessary  to  resort  to  a  sup- 
position which  has  great  and  special  difficulties  of  its  own.  The 
virtual  identity  of  the  Irish  law  of  Distress  with  the  Teutonic  law 
is  best  brought  out  by  comparing  it  with  the  Teutonic  systems  of 
procedure  collectively.  Thus  the  Distress  of  the  Senchus  jNIor 
is  not,  like  the  Distress  of  the  English  Common  Law,  a  remedy  con- 
fined in  the  main  to  demands  of  the  lord  on  his  tenants ;  as  in  the 
Salic  and  other  Continental  Germanic  Codes,  it  extends  to  breaches 
of  contract,  and  indeed,  so  far  as  the  Brehon  law  is  already  known, 
it  would  appear  to  be  the  univei^al  method  of  prosecuting  claims 
of  all  kinds.  The  Notice  again  to  the  person  whose  goods  are  to 
be  distrained  which  it  strenuously  insists  upon,  though  not  found 
in  the  surviving  English  Common  Law,  fills  an  important  place, 
as  I  stated,  in  other  Teutonic  collections  of  rules.  So  too  the 
attendance  of  witnesses  is  required  by  the  Continental  Codes ; 
and,  though  the  presence  of  the  Brehon  law  agent  is  peculiar  to  the 
Irish  system  and  very  characteristic  of  it,  certain  persons  having 
much  the  same  duties  are  required  by  some  of  the  Teutonic  systems 
to  be  present  during  the  process  of  distraint.  Further,  the  Stay 
of  proceedings,  which  has  been  compared  to  an  Attachment,  seems 
to  me  better  explained  by  certain  provisions  of  the  'Leges  Bar- 
"barorum.'  Under  some  of  them  when  a  person's  property 
is  about  to  be  seized  he  makes  a  mimic  resistance ;  under  the  Salic 
law,  he  protests  against  the  injustice  of  the  attempt ;    under  the 


602  PROCEDURE  [Part  IV. 

Ripuarlan  law,  he  goes  through  the  expressive  formahty  of  standing 
at  his  door  with  a  drawn  sword.  Thereupon,  the  seizure  is  in- 
terrupted and  an  opportunity  is  given  for  enquiring  into  the  regu- 
larity of  the  proceedings  and,  probably  also,  into  the  justice  of 
the  claim.  The  Lien  or  charge  upon  the  distrained  property,  which 
the  Irish  law  confers  on  the  creditor  during  the  currency  of  the 
Stay,  is  not  found  in  the  Continental  Teutonic  law  in  this  exact 
shape;  but,  at  a  particular  stage  of  the  Salic  proceedings,  the 
creditor  has  the  power  of  interdicting  the  debtor  from  selling  or 
mortgaging  any  part  of  his  property  until  the  debt  has  been  satis- 
fied. On  the  other  hand,  several  features  of  the  Irish  system, 
which  are  wholly  absent  from  the  Continental  Teutonic  procedure, 
or  very  faintly  marked  in  it,  belong  conspicuously  to  the  English 
law.  Among  these  may  be  placed  the  impounding,  and  the  '  taking 
in  withernam,'  but  the  great  resemblance  of  all,  and  the  common 
point  of  dissimilarity  from  the  most  ancient  of  the  Leges  Barba- 
rorum,  lies  in  the  fact  that  the  Irish  procedure,  like  the  English, 
requires  neither  assistance  nor  permission  from  any  Court  of  Jus- 
tice. In  all  the  Teutonic  bodies  of  custom  except  the  English 
and  the  Lombardic,  even  when  the  greatest  latitude  of  seizure  is 
allowed  to  litigants  out  of  Court,  some  judicial  person  or  body 
must  be  applied  to  before  they  proceed  to  extremities.  With  us, 
however,  the  entire  seizure  is  completed  before  authority  is  called 
in  ;  and  the  Irish  law  has  exactly  the  same  peculiarity.  Not  only 
so,  but  the  Irish  law  corresponds  to  the  English  law  of  Distress  in 
a  very  advanced  stage  of  development.  It  does  not  employ  the 
seizure  of  cattle  merely  as  a  method  of  extorting  satisfaction.  It 
provides,  as  you  have  seen,  for  their  forfeiture  in  discharge  of  the 
demand  for  which  they  were  taken ;  and  thus  is  distinguished  by 
an  improvement  which  was  only  added  to  the  English  law  by 
statute  after  the  lapse  of  several  centuries. 

The  true  difficulty  in  estimating  the  place  of  this  Irish  procedure 
in  the  historical  development  of  law  arises  from  doubts  as  to  the 
part  really  played  by  the  legal  proceeding  in  which  it  terminated. 
The  English  process  of  Distress,  wherever  it  was  felt  to  be  unjust, 
led  up  to,  and  ended  in,  the  action  of  Replevin,  and  the  Court, 
which  ultimately  tried  the  action,  practically  acquired  its  jurisdic- 
tion through  the  interposition  of  the  Sheriff  in  restoring  the  cattle 
upon  security  given.  No  such  interference  with  a  high  hand  as 
that  of  the  Sheriff  appears  to  be  contemplated  by  the  Irish  law ;  but 
the  Brehon  lawyer  who  ought  properly  to  accompany  the  distrainor 
is  expressly  stated  by  the  Senchus  Mor  to  aid  him  '  until  the  deci- 


Chap.  XXXI,  §  3.]         PRIMITIVE    LEGAL    REMEDIES  603 

sion  of  a  Court.'  ('Ancient  Laws  of  Ireland,'  i.  85.)  ^Miat  was 
the  proceeding  thus  referred  to?  \Miat  authority  had  the  Irish 
Courts  at  any  time  at  which  the  Brehon  law  was  held  in  respect? 
What  were  these  Courts?  To  what  extent  did  they  command 
the  public  force  of  the  sovereign  State  ?  Was  there  any  sovereign 
power  at  any  time  established  in  any  part  of  Ireland  which  could 
give  operative  jurisdiction  to  Courts  of  Justice  and  operative  force 
to  the  law  ?  All  these  questions  —  of  which  the  last  are  in  truth 
the  great  problems  of  ancient  Irish  history  —  must  in  some  degree 
be  answered  before  we  can  have  anything  like  a  confident  opinion 
on  the  actual  working  of  the  Law  of  Distress  set  forth  at  such  length 
in  the  Senchus  Mor. 

Tlie  learned  Editors  of  the  various  Introductions  prefixed  to  the 
official  publications  of  Ancient  Irish  Law  are  plainly  of  opinion  that 
such  jurisdiction  as  any  Irish  Courts  possessed  was,  to  use  the 
technical  phrase,  voluntary.  The  Law  of  Distress,  in  this  view, 
was  clearly  enough  conceived  by  the  Brehon  lawyers,  but  it  de-  --i 

pended  for  the  practical  obedience  which  it  obtained  on  the  aid  of 
public  opinion  and  of  popular  respect  for  a  professional  caste.  Its 
object  was  to  force  disputants  to  submit  to  what  was  rather  an 
arbitration  than  an  action,  before  a  Brehon  selected  by  themselves, 
or  at  most  before  some  recognised  tribunal  advised  by  a  Brehon. 
At  the  same  time,  it  would  seem  that  there  are  ancient  Irish  tracts 
or  fragments  of  tracts  in  existence  which  describe  the  ancient  Irish 
as  having  had  a  most  elaborate  public  organisation,  judicial  as  well 
as  legislative.  .  .  .  There  are  analogies  to  many  of  the  tribunals  ^,  " 
described  among  the  rudimentary  institutions  of  several  communi- 
ties. Such  tribunals  might  further  be  highly  developed  and  yet 
their  jurisdiction  might  be  only  voluntary.  Sohm  appears  to  me 
to  have  proved  that  the  Prankish  Popular  Courts  did  not  execute 
their  owai  decrees ;  if  the  defendant  had  promised  to  submit  to  an 
award,  the  local  deputy  of  the  King  might  be  required  to  enforce 
it,  but,  if  there  had  been  no  such  promise,  the  plaintiff  was  forced 
to  petition  the  King  in  person.  There  is  much  reason  in  fact  for 
thinking  that,  in  the  earliest  times  and  before  the  full  development 
of  that  kingly  authority  which  has  lent  so  much  vigour  to  the  arm 
of  the  law  in  most  Aryan  communities,  but  which  was  virtually 
denied  to  the  Irish,  Courts  of  Justice  existed  less  for  the  purpose 
of  doing  right  universally  than  for  the  purpose  of  supplying  an  al- 
ternative to  the  violent  redress  of  wrong.  Even  then  if  we  suppose 
that  the  Ireland  which  is  said  to  have  enjoyed  an  elaborate  judicial 
organisation  was  greatly  ruder  and  wilder  than  Irish   patriots 


604  PROCEDURE  [Part  IV. 

would  probably  allow  it  to  have  been,  there  is  no  such  inconsist- 
ency between  the  prevalence  of  disorder  and  the  frequency  of 
litigation  as  would  make  them  exclude  one  another.  The  Norse 
literature,  which  Mr.  Dasent  has  popularised  among  us,  shows 
that  perpetual  fighting  and  perpetual  ligitation  may  go  on  side 
by  side,  and  that  a  highly  technical  procedure  may  be  scrupulously 
followed  at  a  time  when  homicide  is  an  everyday  occurrence.  The 
fact  seems  to  be  that  contention  in  Court  takes  the  place  of  conten- 
tion in  arms,  but  only  gradually  takes  its  place ;  and  it  is  a  tenable 
theory  that  many  of  the  strange  peculiarities  of  ancient  law,  the 
technical  snares,  traps,  and  pitfalls  with  which  it  abounds,  really 
represent  and  carry  on  the  feints,  stratagems,  and  ambuscades 
of  actual  armed  strife  between  man  and  man,  between  tribe  and 
tribe.  .  .  .  The  simple  explanation  is  that  the  same  natural  im- 
pulse is  gratified  in  a  new  way  ;  hasty  appeals  to  a  judge  succeed 
hurried  quarrels,  and  hereditary  law-suits  take  the  place  of  ancestral 
blood-feuds.  If  the  transition  from  one  state  of  society  to  another 
in  modern  India  were  not  sudden  but  gradual  and  slow,  as  it  uni- 
versally was  in  the  old  Aryan  world,  we  should  see  the  battle  with 
technicalities  going  on  in  Court  at  the  same  time  that  the  battle 
was  waged  out  of  Court  with  sword  and  matchlock. 

When,  however,  we  are  considering  the  place  in  legal  history 
of  the  old  Irish  Law  of  Distress,  the  point  to  which  we  have  to  at- 
tend is  not  so  much  the  mere  existence  of  Courts  of  Justice  as  the 
effectiveness  of  their  process,  or  in  other  words  the  degree  in 
which  they  command  the  public  force  of  the  Commonwealth.  I 
think  I  have  shown  it  to  be  probable  that,  in  proportion  as  Courts 
grow  stronger,  they  first  take  under  their  control  the  bar- 
barous practice  of  making  reprisals  on  a  wrongdoer  by  seizing 
his  property,  and  ultimately  they  absorb  it  into  their  own  proced- 
ure. Now,  the  Irish  Law  of  Distress  belongs  in  one  respect  to  a 
very  early  stage  in  this  course  of  development,  since  it  is  even  more 
completely  extrajudicial  than  is  that  fragment  of  the  primitive 
barbarous  remedy  which  has  survived  among  ourselves.  On  the 
other  hand,  there  are  several  particulars  in  which  it  is  not  more 
but  distinctly  less  archaic  than  the  English  Common  Law.  The 
'Notice'  to  the  defendant,  for  which  it  provides  —  the  'Stay,' 
or  temporary  retention  of  the  goods  by  the  owner,  subject  to  a  lien 
—  the  witnesses  who  have  to  be  present,  and  the  skilled  legal  ad- 
viser who  has  to  attend  throughout  the  proceedings  —  belong  to 
a  range  of  ideas  greatly  more  advanced  than  that  under  which  all 
these  precautions  are  dispensed  with.     Even  stronger  evidence 


I 


Chap.  XXXI,  §  3.]         PRIMITIVE    LEGAL    REMEDIES  605 

of  maturity  is  furnished  by  the  almost  inconceivable  multitude  of 
rules  and  distinctions  which  the  Senchus  Mor  applies  to  every  part 
of  the  proceedings ;  and  our  own  experience  shows  that  the  most 
remarkable  feature  of  the  old  Irish  law,  the  forfeiture  of  the  prop- 
erty taken  in  distress  when  the  original  debt  and  the  expenses  of 
custody  come  up  to  its  full  value,  has  its  place  among  the  latest 
improvements  in  jurisprudence. 


Among  the  writers  who  have  recognised  the  strong  affinities 
connecting  the  English  and  Irish  Law  of  Distress,  I  find  it  difficult 
to  distinguish  between  those  who  believe  in  the  direct  derivation  of 
the  English  law  from  pre-existing  Celtic  customs  common  to  Britain 
and  Ireland,  and  those  who  see  a  sufficient  explanation  of  the  re- 
semblances between  the  two  sets  of  rules  in  their  common  parent- 
age. .  .  .  The  true  rival  of  all  these  theories  of  the  derivation  of 
one  body  of  custom  from  another  is,  of  course,  the  theory  of  the  com- 
mon descent  of  all  from  an  original  basis  of  usage  which  we  must, 
provisionally  at  all  events,  call  Aryan.  Confining  ourselves  to  the 
practice  which  we  have  been  investigating,  the  remedy  for  sup- 
posed wrong  by  distress,  if  there  could  be  a  doubt  of  its  being  a 
legacy  from  the  primitive  Aryan  usages,  it  would  be  removed  by 
the  remarkable  detail  which  connects  the  Irish  with  the  Hindoo 
law.  The  Irish  rules  of  distraint  very  strongly  resemble  the  Eng- 
lish rules,  less  strongly-  resemble  the  Continental  Teutonic  rules, 
but  they  include  one  rule  not  found  in  any  Teutonic  Code,  almost 
unintelligible  in  the  Irish  system,  but  known  to  govern  conduct 
even  at  this  hour  all  over  the  East,  where  its  meaning  is  perfectly 
clear.  This  is  the  rule  that  a  creditor  who  requires  payment  from 
a  debtor  of  higher  rank  than  himself  shall  'fast  upon  him.'  What 
possible  explanation  will  cover  all  the  fact  except  that  the  primitive 
Aryans  bequeathed  the  remedy  of  distress  to  the  communities 
which  sprang  from  them,  and  that  varieties  of  detail  have  been 
produced  by  what  Dr.  Sullivan,  in  his  Introduction,  has  happily 
called  dynamical  influences  ? 

Here  is  the  leading  provision  of  the  Senchus  jNIor  on  the  subject 
(i.^ll3)_:- 

'  Notice  precedes  every  distress  in  the  case  of  the  inferior  grades 
except  it  be  by  persons  of  distinction  or  upon  persons  of  distinction. 
Fasting  precedes  distress  in  their  case.  He  who  does  not  give  a 
pledge  to  fasting  is  an  evader  of  all ;  he  who  disregards  all  things 
shall  not  be  paid  by  God  or  man*' 


>^v 


606  PROCEDURE  [Part  IV. 

Mr.  Whitley  Stokes  was  the  first,  I  believe,  to  point  out  that  tlie 
institution  here  referred  to  was  identical  with  a  practice  diffused 
over  the  whole  East,  and  called  by  the  Hindoos  'sitting  dharna.' 
.  .  ,  Butperhapsthe  most  striking  examples  of  the  ancient  custom 
are  to  be  found  at  this  day  in  Persia,  where  (lam  told)  a  man  intend- 
ing to  enforce  payment  of  a  demand  by  fasting  begins  by  sowing 
some  barley  at  his  debtor's  door  and  sitting  down  in  the  middle. 
The  symbolism  is  plain  enough.  The  creditor  means  that  he  will 
stay  where  he  is  without  food,  either  until  he  is  paid  or  until  the 
barley-seed  grows  up  and  gives  him  bread  to  eat. 

The  corresponding  Indian  practice  is  known,  I  before  stated,  as 
'sitting  dharna'  —  dharna,  according  to  the  better  opinion,  being 
exactly  equivalent  to  the  Roman  'capio,'  and  meaning  'detention' 
or  'arrest.'  Among  the  methods  of  enforcing  payment  of  a  debt 
described  in  the  collection  of  rules  attributed  to  the  semi-divine 
legislator,  Manu  (viii.  49),  is  one  which  Sir  William  Jones  renders 
'the  mediation  of  friends  ;'  but  more  recent  Sanscrit  scholars  assert 
that  the  expression  of  the  original  text  signifies  'hdarna.'  And 
in  the  '  Vj'avahara  Mayukha,'  a  Brahminical  law-book  of  much 
authority,  Brihaspiti,  a  juridical  writer  sometimes  classed  with 
Manu,  is  cited  as  enumerating,  among  the  lawful  modes  of  compul- 
sion by  which  the  debtor  can  be  made  to  pay,  '  confining  his  wife, 
his  son,  or  his  cattle,  or  watching  constantly  at  his  door.'  This 
remarkable  passage  not  only  connects  Hindoo  law  with  Irish  law 
through  the  reference  to  'watching  constantly  at  the  door,'  but 
it  connects  it  also  with  the  Teutonic,  and  among  them  with  the 
English  bodies  of  custom,  by  speaking  of  the  distraint  of  cattle 
as  a  method  of  enforcing  a  demand.  We  have  not  in  the  Western 
world,  so  far  as  I  am  aware,  any  example  of  so  strong  a  form  of  dis- 
tress as  seizing  a  man's  wife  or  children,  but  it  is  somewhat  curious 
that  we  have  evidence  of  its  having  been  common  in  ancient  Ire- 
land to  give  a  son  as  a  pledge  to  the  creditor  for  the  purpose  of  re- 
leasing the  distrained  property. 

Lord  Teignmouth  has  left  us  a  description  (in  Forbes'  'Oriental 
Memoirs,'  ii.  25)  of  the  form  which  the  'watching  constantly  at  the 
door '  of  Brihaspiti  had  assumed  in  British  India  before  the  end  of 
of  the  last  century:  'The  inviolability  of  the  Brahmin  is  a  fixed 
principle  with  the  Hindoos,  and  to  deprive  him  of  fife,  either  by 
direct  violence  or  by  causing  his  death  in  any  mode,  is  a  crime  which 
admits  of  no  expiation.  To  this  principle  may  be  traced  the  prac- 
tice called  dharna,  which  may  be  translated  caption  or  arrest.  It 
is  used  by  the  Brahmins  to  gaiim  a  point  which  cannot  be  accom- 


Chap.  XXXI,  §  3.]         PRIMITIVE    LEGAL    REMEDIES  607 

plished  by  any  other  means,  and  the  process  Is  as  follows :  The 
Brahmin  who  adopts  this  expedient  for  the  purpose  mentioned 
proceeds  to  the  door  or  house  of  the  person  against  whom  it  is 
directed,  or  wherever  he  may  most  conveniently  arrest  him ;  he 
then  sits  down  in  dharna  with  poison  or  a  poignard  or  some  other 
instrument  of  suicide  in  his  hand,  and  threatening  to  use  it  if  his 
adversary  should  attempt  to  molest  or  pass  him,  he  thus  completely 
arrests  him.  In  this  situation  the  Brahmin  fasts,  and  by  the 
rigour  of  the  etiquette  the  unfortunate  object  of  his  arrest  ought  to 
fast  also,  and  thus  they  both  remain  till  the  institutor  of  the 
dharna  obtains  satisfaction.  In  this,  as  he  seldom  makes  the  at- 
tempt without  the  resolution  to  persevere,  he  rarely  fails;  for  if 
the  party  thus  arrested  were  to  suffer  the  Brahmin  sitting  in 
dharna  to  perish  by  hunger,  the  sin  would  for  ever  lie  upon  his 
head.  This  practice  has  been  less  frequent  of  late  years,  since  the 
institution  of  the  Court  of  Justice  at  Benares  in  1793  ;  but  the  inter- 
ference of  the  Court  and  even  of  the  Resident  has  occasionally 
proved  insufficient  to  check  it.' 

You  will  observe  that  the  old  Brahminical  writer  merely  speaks 
of  confining  a  man  to  his  house  by  '  watching  constantly  at  the  door ' 
as  one  among  several  modes  of  extorting  satisfaction.  He  classes 
it  with  forms  of  distraint  more  intelligible  to  us  —  the  seizure  of 
the  debtor's  cattle,  of  his  wife,  or  of  his  child.  Though  the  an- 
cient rule  has  not  descended  to  us  along  with  its  original  context, 
we  need  not  doubt  that  even  in  the  earliest  times  it  was  enforced 
by  a  supernatural  sanction,  since  every  violation  of  the  Brahmini- 
cal Code  was  regarded  by  its  authors  not  only  as  a  civil  offence 
but  as  a  sin.  Thus  a  Brahmin  might  quite  well  be  conceived  as 
saying  with  the  writer  in  the  Senchus  ]\Ior,  'He  who  does  not  give 
a  pledge  to  fasting  is  an  evader  of  all ;  he  who  disregards  all  things 
shall  not  be  paid  by  God  or  man.'  Many  centuries  then  elapse, 
which  it  would  be  vain  to  calculate,  and  almost  in  our  own  day 
we  find  the  ancient  usage  practised  in  India,  but  with  modifica- 
tions corresponding  to  a  great  deal  of  change  which  is  suspected 
to  have  occurred  in  Hindoo  theology.  The  indefinite  supernatural 
penalty  has  become  the  definite  supernatural  penalty  incurred  by 
destroying  life,  and  particularly  human  life.  The  creditor  not 
only  'watches  at  the  door,'  but  kills  himself  by  poison  or  dagger 
if  the  arrest  is  broken,  or  by  starvation  if  payment  is  too  long  de- 
layed. Finally,  we  have  the  practice  described  by  Lord  Teign- 
mouth  as  one  peculiarly  or  exclusively  resorted  to  by  Brahmins. 
The  sanctity  of  Brahminical  Ufe  lfe,s  now  in  fact  pretty  much  taken, 


608  PROCEDURE  [Part  IV. 

in  Hindoo  idea,  the  place  once  occupied  by  the  sanctity  of  human 
Hfe,  and  'sitting  dharna,'  when  the  Enghsh  law  first  endeavoured 
to  suppress  it,  was  understood  to  bC  ty  special  mode  of  oppression 
practised  by  Brahmins  for  a  consideration  in  money.   .   .   . 


It  seems  to  me  that  a  reasonable  explanation  may  be  given  of 
the  origin  of  these  practices  which  now  seem  so  strange.  Let  us 
not  forget  that  all  forms  of  Distress,  the  seizure  of  wife,  child,  or 
cattle,  even  when  wholly  unregulated  by  law,  were  improvements 
on  older  custom.  The  primitive  proceeding  w^as  undoubtedly 
the  unceremonious,  unannounced,  attack  of  the  tribe  or  the  man 
stung  by  injury  on  the  tribe  or  the  man  who  had  inflicted  it.  Any 
expedient  by  which  sudden  plunder  or  slaughter  was  adjourned 
or  prevented  was  an  advantage  even  to  barbarous  society.  Thus, 
it  was  a  gain  to  mankind  as  a  whole  when  its  priests  and  leaders 
began  to  encourage  the  seizure  of  property  or  family,  not  for  the 
purpose  of  permanent  appropriation,  but  with  a  view  to  what  we 
should  now  not  hesitate  to  call  extortion.  Similarly,  it  was  a  step 
forwards  when  men  learned  to  pause  before  attacking  instead  of 
attacking  at  once.  We  are  told,  in  the  '  Compendium  of  Kafir 
Laws  and  Customs '  ^  published  by  Mr.  Dugmore  and  other  mis- 
sionaries (p.  38),  that  the  regular  procedure  of  a  Kafir  law-suit 
simulates  an  expedition  in  force  of  the  plaintiff  and  his  friends 
against  the  village  to  which  the  defendant  belongs.  'On  their 
arrival  they  sit  down  together  in  some  conspicuous  position  and 
aw^ait  quietly  the  result  of  their  presence.  This  ...  is  the  signal 
for  mustering  all  the  adult  male  residents  that  are  forthcoming. 
These  accordingly  assemble  and  also  sit  down  w^ithin  conversing 
distance.'  After  long  silence  a  conversation  ensues,  and  the  pro- 
ceeding, which  is  a  perfectly  peaceable  one,  is  continued  by  a  long 
series  of  technical  formalities  and  intricate  pleadings.  This  silent 
pause  of  the  attacking  party  is  an  early  form  of  Notice,  in  itself 
one  of  the  most  valuable  of  institutions ;  and  with  it  is  connected 
another  primitive  contrivance,  shutting  a  man  up  in  his  house  till 
he  gives  satisfaction,  instead  of  setting  on  him  at  once.  A  very 
striking  illustration  of  it  is  found  in  a  law  of  Alfred,  familiar  to 
historical  scholars  (Kemble,  'Saxons,'  i.  272;  Thorpe,  'Ancient 
Laws,'  i.  91) :  — 

'Let  the  man  who  knows  his  foe  to  be  home-sitting  fight  not 

1  [See  Vol.  I.  Chapter  XI  ("  Sourceaof  Ancient  and  Primitive  Law  ")  for 
this  report.]  • 


Chap.  XXXI,  §  4.]        THE    ORDEAL    AXD    THE    OATH  609 

before  he  have  demanded  justice  of  him.  If  he  have  power  to  beset 
his  foe  and  besiege  him  in  his  house,  let  him  keep  him  there  for 
seven  days  but  not  attack  him  if  he  will  remain  indoors.  If  then, 
after  seven  days,  he  be  willing  to  surrender  and  give  up  his  weapons, 
let  him  be  kept  safe  for  thirty  days,  and  let  notice  be  given  to  his 
kinsmen  and  friends.  But  if  the  plaintifif  have  not  power  of  his 
own,  let  him  ride  to  the  Ealdorman,  and,  if  the  Ealdorman  will 
not  aid  him,  let  him  ride  to  the  King  before  he  fights.'  The  pas- 
sage ends  with  a  provision  of  which  the  spirit,  strange  to  say, 
survives  in  the  modern  Code  making  the  loudest  claim  to  civilised 
principle,  the  Code  Napoleon  {Code  Penal,  s.  324),  to  the  effect 
that  if  the  man  who  is  homesitting  be  really  shut  up  in  his  house 
with  the  complainant's  wife,  daughter,  or  sister,  he  maj'  be 
attacked  and  killed  without  ceremony. 

The  object  of  the  Law  of  Alfred  is  plainly  the  same  with  that 
aimed  at  by  the  ancient  rule  of  Brihaspiti.  The  man  who,  if 
nature  had  her  way,  would  be  slain  at  once,  is  shut  up  in  his  house 
but  left  otherwise  unharmed  till  he  or  his  kinsmen  pay  the  debt 
or  compound  for  the  money.  The  English  rule  is  to  be  enforced 
by  the  civil  power,  the  Ealdorman  or  the  King  ;  the  Hindoo  Brah- 
minical  rule  by  the  fear  of  punishment  is  another  world.  The  Irish 
law-tract  retains  the  Brahminical  rule  as  an  alternative  in  certain 
cases  to  Notice.  But  an  institution  which  was  perfectly  intelligible 
in  a  society  which  included  an  order  of  lawyers  who  were  also 
priests  has  lost  all  meaning  when  this  society  has  been  introduced 
by  Christianity  to  a  wholly  new  set  of  religious  ideas. 

Section  4 

THE   ORDEAL  AND  THE   OATHi 

I.    The  Ordeal 

§  1.  Universality  of  the  Decision  of  God.  The  Ordeal  in  Primi- 
tive Greek  Legend.  The  ordeal,  or  decision  of  God  —  the  deci- 
sion, preeminently  —  is  one  of  those  institutions  which  have  an 
attraction,  not  only  for  the  legal  historian,  but  also  for  historians 
in  general  and  for  every  one  who  is  interested  in  studying  the 

1  [This  extract  is  Chapters  II  and  III  (in  part)  of  "Etudes  soeiales  et 
juridiques  sur  I'antiquite  grecque,"  by  Gustave  Glotz  (1906,  Librairie 
Hachette  et  C®,  Paris).  M.  Glotz  is  professor  of  history  at  the  Lyceum 
of  Louis  le  Grand,  Paris,  and  is  widely  known  also  for  other  works  on 
Greek  manners  and  customs,  notablv  "La  solidarite  de  la  famille  dans  le 
droit  criminel  en  Grece."     The  translation  is  by  John  H.  Wigmore.] 


610  PROCEDURE  [Part  IV. 

germinal  Ideas  of  civilization  in  primitive  peoples.  Ordinarily 
the  ordeal  is  associa-ted  by  us  especially  with  the  medieval  prac- 
tices of  Christian  peoples.  But  fov  the  thorough  understanding 
of  its  spirit,  a^  well  as  of  its  later  forms,  we  shall  do  well  to  study 
it  in  a  period  and  an  environment  further  removed  from  our  own 
beliefs.  Some  effort  is  required,  of  course,  to  enter  into  a  type  of 
thought  so  alien  to  our  own  developed  notions.  But  it  is  worth 
our  while ;  for  this  custom  of  the  ordeal  is  one  of  those  which  had 
a  potent"  injQuence  in  primitive  societies  and  have  contributed 
largely  to  the  first  fruition  of  legal  ideas,  ;^ —  customs  destined  to 
perpetuate  themselves  in  fertile  variety  by  continual  differentia- 
tions. 
^~  From  France  to  Polynesia,  from  Scandinavia  to  farthermost 
Africa,  there  is  perhaps  no  country  in  the  world  which  has  not  made 
use  of  some  test  of  mortal  import,  imposed  upon  him  who  would 
enforce  his  claim  or  demonstrate  his  innocence.  Trial  by  boiling 
water  or  by  cold  water,  trial  by  fire  or  by  poison,  —  whatever  the 
method  and  w^hatever  the  era,  the  belief  is  always  found,  at  a  cer- 
tain stage  of  a  people's  social  and  religious  growth,  that  the  best 
mode  of  ending  a  controversy  is  to  place  one  (at  least)  of  the 
/  disputants  in  some  position  of  serious  peril,  and  thus  to  force  the 
l^^ivine  beings  to  take  sides  for  the  sake  of  doing  justice. 

The  idea  inspiring  this  procedure  —  at  once  religious  and 
awful  —  may  be  clearly  seen  in  the  preliminarj'  ceremony.  At 
the  crucial  moment,  the  petitioner  for  divine  intervention  — 
generally  the  one  whose  body  is  to  undergo  the  trial  —  utters  a 
prayer,  a  direct  and  formal  appeal  to  Divine  Providence.  In 
communities  where  the  priesthood  forms  a  caste,  the  professional 
man  of  God  is  the  one  who  comes  forward  to  make  the  solemn 
invocation.  This  utterance,  for  example,  of  the  Hindu  priest, 
was  as  follows :  ^  "  O  Fire !  thou  seest,  even  as  a  witness,  into 
each  human  being's  heart.  Thou  alone  knowest  that  which 
mortals  cannot  know.  The  accused  man  stands  before  Thee, 
seeking  exoneration.  Let  him  escape  the  harm  which  impends  in 
the  test  now  to  be  applied  to  him."  Or,  again,  the  Christian 
priest,  approaching  the  stream  into  which  the  accused  was  to 
plunge,  spoke  thus :  "  I  adjure  Thee,  Water  of  trial,  in  the  name 
of  God,  that  Thou  give  no  good  reception  to  this  man,  if  he  be 
guilty  in  aught." 

1  A  number  of  these  formulas  may  be  found  collected  in  Kovalewsky's 
"Coutume  contemporaine  et  loi  ancienne,"  pp.  397-398.  [For  a  collection 
of  Germanic  formulas  see  Vol.  I,  Ch.  i^XIII,  No.  5.] 


IS 

a\ 
er 


Chap.  XXXI,  §  4.]       Tml^RDEAL   AND    THE    OATH  611 

In  communities  where  no  priesthood  obtained,  the  party  him- 
self uttered  the  appropriate  formula.  At  Rome,  for  example, 
the  vestal  virgin  sentenced  to  submit  either  to  death  or  to  safety 
by  a  miracle,  prayed :  "  O  Vesta !  guardian  of  Rome's  city,  if  I 
have  fulfill©^  towards  thee  for  nearl}'  thirty  years  all  my  religious 
duties  witt  strictness,  if  my  soul  is  pure  and  my  body  spotless, 
appear  TVJW  and  help  me ;  let  not  thy  priestess  perish  in  dishonor. 
If  I  have  acted  sinfully,  punish  me,  and  let  my  death  atone  for  ' 
the  c<y."  ^ 

And  so,  whether  it  be  Hindus,  Romans,  or  medieval  Christians         '^'^ 
vand  among  other  peoples  the  same  is  true) ,  they  all  exhibit  the  firm 
conviction  that  God  himself  will  pronounce  the  truth  either  by 
letting  the  party  perish  or  by  saving  him  from  an  otherwise  certain  ' 
destruction.  '       ^^ 

And  yet  this  conception  of  a  justice  made  visible  upon  earth  by ' 
a  divinity,  master  of  fates,  is  in  fact  the  conception  of  a  relatively 
advanced  epoch.     It  presupposes  that  the  primitive  human  hordesv 
have  already'  formed  social  groups  of  governed  communal  life' 
before  they  can  have  attained  a  belief  in  superior  deities  whc'  , 
watch  over  those  common  interests  and  dispense  justice.     Thi 
conception,  which  is  an  advanced  one,  has  been  applied  to  a  crudt  .. 
and  earlier  procedure ;   it  did  not  create  that  procedure.     And  so,  , 
wte  ask,  what  were  those  more  primitive  ideas  which  themselve. 
gave  rise  to  the  ordeal?  -^--j^- 

To  answer  this  question,  we  must  go  far  behind  the  period  of 

E'tten  laws  and  codified  systems.  It  is  a  safe  general  canon  that 
ry  custom  has  undergone  important  changes  before  it  comes 
)e  reduced  to  a  formal  document.  And  the  primary  significance 
of.'.the  ordeal  must  ordinarily  be  expected  to  appear  only  in  the 
customs  of  those  tribes  which  are  still  more  or  less  uncivilized  and 
are  known  only  to  the  occasional  explorer  of  distant  lands.  And 
yetl,  on  the  other  hand,  it  is  full  of  risk,  after  all,  to  base  our  infer- 
enqes  on  a  comparison  of  peoples  differing  not  only  in  their  stages 
of  ci^'i]ization  but  also  in  their  social  habits.  Some  scholars,  and 
sou^id  ones,  have  declined  to  trace  the  evolution  of  a  trait  by  shift- 
ing from  one  country  to  another ;  they  insist  on  a  stricter  method. 
If  one  could  point  to  two  successive  conceptions  of  the  ordeal  in 
the  same  community,  there  need  be  no  hesitation  in  deeming  that 
th0  phenomenon  in  question  exhibited  a  genuine  principle  of 
evolution. 
Such  an  instari  2e  can  be  found.  We  have  it  in  Greece.  Enough 
1  Deais  of  Halicarnassus,  H,  68. 


612  PROCEDURE  .v^W"....  [Part  IV 


^. 


data  are  there  extant  to  exhibit  to  us  both  the  (decision  of  God  in 
its  classical  mode,  and  the  ordeal  in  its  primitive  conception. 

The  Greeks  of  the  advanced  period  had  not  forgotten  the  use 
of  ordeals.  In  Sophocles'  "Antigone,"  the  guards  set  to  watch 
the  body  of  Polynices,  denying  neglect  of  their  dut^-,  con\erse 
thus  :  "  We  were  ready  to  take  up  the  red-hot  iron,  to  » aJk  through 
the  flames,  and  to  make  oath  before  the  gods  that  we  we>e  neither 
guilty  nor  privy  to  it."  ^  Again,  in  Sicily,  where  there  werecraters 
of  boiling  liquid,  emitting  poisonous  gases,  and  consecrated  to 
the  gods  Palici,  it  was  customary  on  the  brink  of  these  craters  to 
take  oaths  which  would  bring  death  to  perjurers;  for  the  godt. 
spared  the  innocent  and  destroyed  the  guilty.^  .  .  . 

We  need  not  be  surprised  at  the  abundance  of  evidence  of  or- 
deals in  pre-historic  times  in  Greece.  That  country  teemed  with 
legends.  Scholars  were  long  accustomed  to  explain  these  myths 
as  the  dramatic  imagination  of  reasons  for  natural  phenomena. 
3ut  to-day  we  do  not  concede  that  entire  communities,  especially 
n  the  crude  childhood  of  humanity,  were  so  absorbed  in  the  con- 

emplation  of  sun  and  moon,  storm  and  lightning,  as  to  know  no 
m  •         .  .  . 

..^.ther  themes  for  their  recitals.     These  stories  are  in  truth  history, 

,—  the  history  of  real  men,  who  loved  and  hated,  triumphed  anc!- 
suffered,  lived  and  died.  These  fantastic  shadows  of  drvine 
•ippets,  viewed  close  at  hand,  become  beings  of  flesh  and  blood, 
who  breathe  and  move.  Even  in  Nature's  forces  the  primitive 
man  saw  manifestations  of  beings  like  himself.  He  explained  the 
relations  of  the  elements  by  the  same  relations,  hostile  or  friendl.V/' 
which  he  saw  among  other  men  around  him.  Thus,  even  in  those 
myths  which  are  open  to  a  naturistic  interpretation,  we  see  re- 
vealed the  minds  of  those  who  invented  them,  as  well  as  the 
phenomena  which  they  were  meant  to  explain.  But,  in  the  cafee 
of  an  infinite  number  of  myths,  they  were  certainly  not  meant  *to 
mask  cosmic  forces  or  divine  beings  in  a  human  guise.  They  are 
merely  the  ingenuous  memorials  of  early  beliefs  and  primitive 
customs.  They  served  to  transmit  the  law  and  the  religion*  of 
a  rudimentary  social  condition.  | 

If,  then,  we  cull  from  them  the  details  added  by  later  generati(yis, 
they  become  indisputable  evidence  and  rank  as  historical  sour^s. 
The  collections  of  the  Greek  myth-writers  contain  virtually^  a 
custumal  of  primitive  law.  Among  the  institutions  therein  de- 
picted, the  ordeal  is  prominent. 

1  "Antigone,"  264-266. 

2  Polevion,  in  Macrobius,  "Saturnalia,"  V,  1  ),  15  fif. 


Chap.  XXXI,  §  4.]        THE    ORDEAL    AXD    THE    OATH  613 

§  2.  The  Ordeal  in  the  Genos.  Its  principal  Uses.  Its  Effects.^ 
The  communities  in  which  the  ordeal  appeared  had  not  yet 
become  city-states.  They  were  the  "genoi."  or  famik^-gfoaps. 
clans,  or  patriarchal  families.  In  these  small  groups,  the  later 
distinctions  growing  out  of  a  complex  social  life  were  not  yet 
known.  Civil  and  criminal  law,  public  law  —  all  these  divisions 
formed  but  a  single  subject ;  and  law  was  as  yet  undistinguisbed 
from  religion.  Even  religion  was  not  yet  imbued  with  that 
ethical  spirit  which  was  later  to  dominate  as  the  community  grew 
more  numerous  and  extensive.     The  gods  were  not  dispensers  of 

justice. They  are  beings  who  wield  the  supreme  forces  of  the 

world.  They  are  hostile  and  malevolent  to  all  who  do  not  belong 
to  the  group  protected  by  the  gods ;  and  they  are  the  ever-readj' 
champions  of  all  who  share  their  own  blood  or  race. 

Amidst  such  beliefs,  when  quarrels  arise,  it  is  not  a  question  of 
deciding  which  party  has  the  law  on  his  side.  It  is  not  even  a 
question  of  finding  the  moral  truth  or  the  justice  of  the  case,  as 
between  the  disputants.  To  settle  it,  what  is  wanted  and  whav 
suffices  is  that  the  party  shall  be  able  to  invoke  some  magical  power 
and  thus  to  overcome  the  dangers  which  in  the  natural  course  of 
things  would  subject  him  to  destruction.  This  power  he  cgv  get 
from  the  gods ;  it  belongs  only  to  the  race  of  the  gods.  His 
blood-connection  is  what  vindicates  his  high  lineage  and  thus  hi.? 
innocence ;  for  the  gods  will  implacably  destroy  the  worthless 
creature  who  invokes  them  without  any  claim  to  be  of  their  blood. 

Who,  then,  were  the  persons  who  could  thus  vindicate  them- 
selves when  in  peril  of  life  or  limb?  Here  we  must  remember, 
that  the  sturdy  warrior  supported  by  a  following  of  other  warriors 
had  no  need  to  demonstrate  his  lineage  with  the  gods ;  for  this 
was  apparent  to  all  men.  But  the  humble  being  who  existed  in 
obscurity  on  the  fringe  of  the  community,  —  he  it  was  who  needed 
this  help,  and  could  save  his  life  and  his  honor  only  by  the  posses- 
sion of  some  secret  talisman.  Who  were  these,  the  discarded 
class  in  primitive  society?  They  were  the  aliens,  the  outsiders, 
and  particularly  also  the  women  and  the  children.  ^Although  the 
ordeal  was  used  in  an  innumerable  variety  of  cases,  it  was  pre- 
eminently the  weak  who  were  liable  to  be  called  upon  to  furnish 
this  proof  of  worthy  origin,  of  a  right  to  life  and  to  safet^  We 
can  even  say  that  the  weaker  class,  instead  of  being  sometimes 
complainants  and  sometimes  defendants,  were  always  put  upon  the 
„'[^nsive.  The  use  of  the  ordeal  has  this  general  feature  running 
'"  it. 


G14  PROCEDURE  [Part  IV. 

A  typical  case  was  that  of  the  woman  whose  dehvery  or  preg- 
nancy of  a  child  revealed  her  misconduct.  She  was  culpable,  if 
she  had  introduced  into  the  group  of  relatives  a  being  not  of  their 
blood.  She  was  not  guilty,  if  she  had  been  intimate  with  a  scion 
of  the  gods ;  for  the  blood  of  the  child  would  be  that  of  the  gods. 
Often  and  often,  in  the  legends,  the  woman  excuses  herself  by 
aL^erting  that  she  had  been  visited  by  a  celestial  being.  But  this 
she  must  prove ;  and  the  proof  would  be  that,  on  subjecting  her 
to  the  risk  of  death,  the  god  would  reveal  his  interest  and  would 
save  her.  Danae's  legend  is  the  most  typical  case.^  Her  father 
Acrisius  had  immured  this  maiden  in  a  cave,  that  she  might  never 
become  a  mother.  After  several  years,  he  heard  the  cry  of  a 
child,  in  the  hollow  of  the  earth.  He  brought  her  out,  with  the 
boy,  placed  her  before  the  altar,  and  demanded  that  she  name  the 
father.  "Zeus,"  she  replied.  But  Acrisius  believed  her  not. 
What  proof  should  he  require?  He  subjected  the  unfortunate 
girl  to  a  dreadful  test,  and  set  her  afloat  on  the  sea.  This  same 
idea,  in  legends  almost  identical,  reappears  in  all  parts  of  Greece 
and  even  in  Rome.  The  Vestal  virgin,  Rhea  Silvia,  when  she 
gave  birth  to  Romulus  and  Remus,  named  Mars  as  their  father, 
and  the  infants  were  set  afloat  in  a  cradle.  In  all  of  these  legends, 
when  the  social  group  grants  to  the  virgin-mother  her  life  without 
dishonor,  it  concedes  thereby  that  her  lover  was  a  man  of  pure 
race,  a  scion  of  the  gods.  This  helps  us  to  understand  how  it  is 
that  in  the  mythologies  so  much  is  said  about  the  gods  having  to 
do  with  the  daughters  of  mortals.  .  .  . 

This  mode  of  treating  the  woman  herself  was  applied,  naturally, 
to  her  child  also.  Perseus  was  subjected  to  the  test  with  his 
mother  Danae ;  Telephus  with  Auge ;  Dionysus  with  Semele. 
But  sometimes,  too,  the  child  alone  is  exposed  to  the  ordeal,  while 
the  erring  mother  is  kept  alive  in  the  clan,  reserved  for  dis- 
honor and  a  harsh  fate.  Numerous  are  the  heroes  who  entered 
upon  life  through  the  test  of  exposure  to  death ;  the  legends 
abound  in  them.  Almost  always  the  circumstances  point  unmis- 
takably to  an  ordeal  as  the  interpretation.  In  most  of  the  in- 
stances, the  test  was  that_of  water.  The  story  of  Romulus  and 
Remus  is  familiar;  it  runs  the~"^aiile"as  the  story  of  the  twins 
Neleus  and  Peleus,  in  Greece ;  of  INIoses,  among  the  Hebrews ; 
of  Sargon  of  Agade,  king  of  Chaldea.     Was  all  this  nothing  more 

1  Id  the  narration  of  Pherekydes,  preserved  by  the  scholiast  Apollon  "*  ^ 
of  Rhodes,  IV,   1091   ("Fragmenta   historicorum   graecorum,"  I  o 

frag.  26).  .  .  if.  ^ 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AND    THE    OATH  615 

than  an  imaginative  fable,  transmitted  from  country  to  country? 
On  the  contrary ;  it  reveals  a  custom  of  primitive  peoples,  reap- 
pearing everywhere,  from  age  to  age.  Proof  enough  of  this  fea- 
ture is  found  in  the  fact  that  it  appears  also  among  the  primitive 
Celtic  and  Germanic  peoples,  at  the  close  of  the  Roman  empire ; 
for  the  emperor  Julian,  and  many  others,  report  that  the  married 
women  of  those  tribes,  when  the}'  bore  a  child  of  suspected  adul- 
terous origin,  were  sent  afloat  on  the  surface  of  the  Rhine ;  if  the 
child  drowned,  the  woman  was  deemed  guilty ;  if  it  survived,  it 
was  deemed  legitimate  and  the  mother  innocent. ^ 

The  ordeal,  then,  in  primitive  times,  served  to  decide,  not  only 
questions  of  guilt,  but  also  questions  of  personal  status.  HenQ 
it  was  well  suited  for  deciding  competing  claims  to  a  succession ; 
that  is  (inasmuch  as  a  system  of  collective  and  undivided  prop- 
erty could  hardly  give  rise  to  a  property  succession  in  the  modern 
sense),  when  competitors  claimed  the  succession  to  the  chieftain- 
ship and  the  inheritable  priesthood.  The  chief  must  be  a  scion 
of  the  god  {Aioyevr]';).  Hence  the  true  claimant  must  be  able  to 
prove  his  origin,  and  to  demonstrate  his  potency,  so  that  none 
could  doubt  his  superhuman  traits.  This  would  be  a  case  of  the 
ordeal  applied  to  persons  of  high  degree.  Both  parties  might  be 
subjected  to  it,  but  its  import  was  the  same.  It  signified  the  tri- 
umph of  the  one  who  was  acceptable  to  the  gods,  and  his  invest- 
ment with  the  chieftain's  insignia,  as  being  of  divine  race. 
.  In  the  primitive  ordeal,  it  remains  to  note,  the  consequences 
wxre  decisive.  The  method  was  simple  (or  complex,  according  to 
the  point  of  view).  But  whether  the  party  offers  his  own  body 
for  the  test ;  or  whether  he  accepts  an  adversary's  challenge ;  or 
whether  he  is  summoned  to  it  by  a  third  person;  the  dispute  is 
terminated  by  the  ordeal.  If  the  subject  of  it  survives,  he  is  vic- 
torious ;  if  he  dies,  then  this  simply  shows  that  the  evil  influences 
have  been  more  potent  than  the  talismans.  The  essential  prin- 
ciple is  that  the  event  of  the  ordeal  serves  both  as  a  proof  and 
and  as  a  judgment  without  recourse.  In  place  of_j^  judgment 
pronounceable  by  men,  we  have  a  judgment  accorded  by  the  gods. 
And  better  than  a  human  judgment*  the  gods  execute  their  judg- 
ment in  pronouncing  it.  It  is  all  one  act.  They  are  both  judges 
ancf  executioners.  TKeX'"  vincficate  the  innocent  by  saving  his 
Jife,  and  they  condemn  the  guilty  in  killing  him. 

And  so  in  the  primitive  ordeal,  the  proof  is  not  yet  distinguished 

.    P,vv2,i»^      ""ulinn.    "Letters,"    XVI;     "Discourses,"    II;     Claudian,    "Against 
"^  IS,"  II  (V),  112  ;  "Palatine  Anthology,"  IX,  125. 


G16  PROCEDURE  [Part  IV. 

from  the  judgment,  nor  even  from  the  penalty.  In  one  aspect  it 
is  procedure  ;  in  another  aspect  punishment ;  its  notion  is  that  by 
placing  the  subject  of  it  at  the  discretion  of  the  gods,  he  is  given 
a  chance,  more  or  less  likely,  of  survival.  From  the  most  painless 
test  to  the  capital  penalty,  from  safety  to  almost  certain  death, 
the  various  ordeals  form  a  series  of  finely  graded  risks  and  suffer- 
ings. In  short,  the  ordeal  of  primitive  peoples  forms  by  itself  a 
whole  system  of  penal  law  and  procedure,  in  spite  of  its  lack  of 
any  of  the  categories  which  at  a  later  day  the  human  mind  was 
destined  to  evolve. 

§  3.  Relation  of  the  Ordeals  to  Religious  Beliefs.  The  Ordeals 
by  Sea.  The  Mouths  of  Hell.  Coincident  Variances  in  Ordeals  and 
Beliefs.  The  Greek  legends  reveal  to  us,  not  only  the  legal 
side  of  the  primitive  ordeal,  but  also,  and  strikingly,  its  essential 
relation  to  religious  ideas.  It  can  be  shown  that  the  Greeks, 
in  their  usual  ordeals,  while  adhering  to  practices  and  beliefs 
common  to  primitive  humanity,  nevertheless  gave  to  these  beliefs 
an  expression  more  modern,  more  national,  and  more  original. 

In  all  primitive  peoples,  the  subject  of  the  ordeal  is  required  to 
make  visible  to  the  observers  his  ability  to  approach  in  safety  the 
all  powerful  Beings  or  to  take  them  into  his  own  body  —  to  face 
and  oppose  their  terrible  presence  or  to  absorb  their  power  of 
destruction,  to  send  safely  the  death-bearing  fluid  over  his  body 
or  into  his  body.  Thus  the  ordeals  might  be  applied  either  ex- 
ternally or  internally.  The  subject  might  immerse  himself  in 
cold  water,  or  thrust  his  hand  into  boiling  water,  or  walk  through 
a  fire  or  over  glowing  coals,  or  hold  out  red-hot  irons.  Or  he  might 
partake  of  those  foods  or  liquids  which  were  reserved  in  popular 
belief  for  the  gods  and  were  thus  indued  with  magical  qualities, 
—  substances  both  sacred  and  accursed,  able  to  give  immortality 
or  death ;  for  to  the  primitive  mind  it  was  the  god's  presence 
which  alike  accounted  for  the  lethal  and  the  benignant  powers. 

All  these  forms  of  ordeals  were  known  to  the  Greeks,  even  in 
the  classic  age.  .  .  .  But  their  choice  ran  to  others.  Ordeals 
had  naturally  showed  marks  of  the  popular  beliefs  as  to  the  future 
fate  of  the  wrongdoer ;  for  th'e  ordeal  was  to  demonstrate  whether 
the  man  was  stronger  than  death.  He  was  placed  between  life 
and  death,  at  the  very  boundary  between  the  world  of  men  and 
the  world  of  spirits,  so  that  he  would  naturally  be  forced  into  the 
latter,  and  yet  by  the  magic  of  a  divine  birth  or  by  the  protection 
of  a  god  he  could  be  retained  on  earth.  Thus  the  method  and 
the  place  of  the  test  varied  according  to  the  local  conception  of 


Chap.  XXXI,  §  4.]        THE    ORDEAL    AND    THE    OATH  617 

a  future  life.     In  primitive  communities,  the  ordeals  reveal  some- 
times a  whole  eschatology. 

(^The  Greeks,  then,  being  born  sailors,  and  susceptible  alike  to 
the  fascination  and  the  terror  of  the  sea,  pictured  the  country  of 
the  dead  as  lying  :.far  away,  beyond  the  countries  of  the  living, 
on  the  other  side  of  the  great  river  Ocean,  where  the  sun  sank  from 
sight  beneath  the  waves.  '  And  so,  to  put  a  human  being  in  the 
presence  of  death,  it  was  enough  to  set  him  afloat  on  that  sea 
which  led  to  the  fateful  Ocean.  One  of  two  issues  there  must 
be ;  the  subject  was  borne  off  to  the  coasts  whence  no  mortal 
returned ;  or  he  was  saved  by  the  waves,  vindicated  and  conse- 
crated by  a  miracle. 

Such  is  the  explanation  of  all  those  legends  in  which  the  hero 
is  shut  up  in  a  coffer  and  cast  into  the  sea.  Sargon,  in  Chaldea, 
was  placed  in  a  chest  coated  with  tar ;  Moses,  in  the  Hebrews,  is 
placed  in  a  basket ;  Romulus  and  Remus  in  a  cradle ;  among  the 
Celts,  the  infants  of  doubtful  paternity  were  set  afloat  on  a  shield  ; 
and  so  the  god  who  decides,  in  all  these  instances,  is  the  river. 
In  Greece,  the  subject  was  usually  placed  in  a  Xcipva^,  or  box  with 
a  lid,  and  committed  to  the  decision  of  Poseidon. 

The  same  beliefs  explain  the  leap  into  the  sea,  a  variant  from  the 
usual  form  of  the  cold-water  ordeal.  The  subject  was  taken  out 
to  the  deep  in  a  boat,  and  was  then  to  plunge  into  the  waves.  A 
valuable  instance  is  revealed  in  the  recently  discovered  poem  of 
Bacchylides.  The  hero  of  the  ordeal  is  Theseus.  He  has  em- 
barked on  the  ship  taking  the  youths  and  maidens  to  be  sacrificed 
at  Crete  to  the  Minotaur ;  and  as  the  tragic  voyage  approaches  its 
end,  king  Minos  attempts  to  embrace  the  beautiful  maiden  Eriboia. 
Theseus,  running  up,  interferes  to  save  her,  and  justifies  his  attack 
on  the  king,  the  son  of  Zeus,  by  proclaiming  his  own  sonship  to 
Poseidon ;  and  to  prove  his  divine  origin  he  proposes  a  duel  by 
miracle.  "Let  us  display  our  powers,  and  the  god  shall  determine 
the  result"  (ra  O'eiriovra  Saificov  Kpivel).  jNIinos  accepts ;  and  be- 
gins by  asking  Zeus  for  an  emphatic  sign  of  recognition  ;  Zeus  answers 
with  a  clap  of  thunder.  Then  it  is  Theseus'  turn  to  show  that  he 
is  protected  by  his  father.  Minos  tosses  a  ring  into  the  sea ;  let 
Theseus  go  and  recover  it  from  the  depths  of  his  father's  home. 
He  falters  not,  utters  not  even  a  prayer,  leaps  in,  and  the  waves 
cover  him.  Straight  passes  the  hero  into  the  palace  of  Poseidon ; 
there  he  finds  Amphitrite,  who  clothes  him  in  purple  and  places 
her  own  crown  on  his  head.  Now  he  can  return  to  the  surface 
of  the  waters ;   for  he  holds  proof  which  will  confound  those  who 


618  PROCEDURE  [Part  IV. 

believed  him  an  impostor. ^  Except  for  the  ending,  which  the 
poet  ideahzed,  this  legend  is  replete  with  reality.  .  ,  . 

Another  variant  of  this  form  was  the  leap  from  a  cliff.  The 
Greeks  believed  that  the  border  of  the  land  of  the  dead  was 
marked  by  a  lofty  cliff,  the  white  or  Leucadian  Cliff,-  —  the  cliff 
already  bathed  in  the  pale  light  that  envelops  the  souls  of  the  dead. 
A  cliff'  of  that  name  could  be  found  on  almost  any  part  of  the 
Greek  coasts.  Wherever  some  unfortunate  one  had  sought  death 
by  leaping  from  the  cliff  into  the  vortex,  this  was  enough  to  make 
one  more  Leucadian  Cliff.  The  leap  might  have  been  taken  in 
expiation,  or  it  might  have  been  done  as  an  ordeal.  All  along  the 
Mediterranean  one  can  trace  the  cult  of  Ino-Leucothea,  the  erring 
wife  who  leaped  into  the  sea  and  became  the  White  Goddess ;  or 
the  cult  of  Britomartis-Dictynna,  the  virtuous  maiden  who  cast 
herself  into  the  sea  to  save  her  innocence  from  the  wicked  pursuer, 
and  became  the  "maiden  of  the  net,"  the  maiden  of  safety.  In 
that  whole  region  these  two  heroines  typify  and  consecrate  the 
leap  from  the  white  cliff,  the  leap  into  death,  the  leap  to  punish- 
ment or  glorification.  Before  it  dwindled  to  a  mere  religious 
ceremony  on  the  island  of  Leucadia,  the  Leucadian  leap  had  this 
broad  relation  to  a  proceeding  which  involved  both  law  and  religion. 

Thus  the  impression  produced  on  the  Hellenic  mind  by  the  or- 
deals of  the  sea  was  deep  and  enduring.  That  mystic  notion  in 
their  geography  —  the  Ocean  leads  to^the  realm  of  the  dead^^ 
came^alscLtolmport  the  ethical  idea :  There  is  a  Justice  of  the  sea. 
From  Thetis  to  Themis  is  not  a  long  step ;  in  forms  more  or  less 
variant,  the  two  goddesses  are  frequently  brought  together  in  the 
legends.  The  primitive  superstition  was  in  time  transmuted  into 
a  dogma.  The  miracles  of  justice  ascribed  to  the  sea  never  lacked 
believers  in  Greece.  Long  after  the  popular  courts  had  ceased  to 
employ  these  terrible  ordeals,  popular  opinion  still  looked  upon 
the  safe  return  from  a  sea-voyage  as  a  strong  presumption  of 
innocence ;  towards  the  end  of  the  5th  century  fe.c,  an  accused 
person  (it  is  recorded),  arguing  before  the  Athenian  judges  upon 
''the  best  and  most  credible  tests,"  appealed  to  the  signs  given 
by  the  gods,  and  urged  in  proof  that  he  had  many  times  traversed 
the  sea  without  shipwreck.^  .  .  . 

And  so,  in  the  variety  of  their  ordeals,  as  well  as  in  their  pre- 
dilection for  the  justice  of  the  sea,  the  Greeks  of  the  primitive  age 
reveal  to  us  the  most  striking  features  of  their  legal,  social,  and  even 

1  BaechyUdes,  XVII.  ^  Odyssey,  XXIV,  11. 

3  Antiphon,  "On  the  Murder  of  Herodes,"  81-83. 


Chap.  XXXI,  §  4.]        THE   ORDEAL  AND   THE   OATH  619 

economic  life,  .s  well  as  their  rooted  beliefs  in  the  life  after  death. 
And  these  same  sources  enable  us  to  perceive  how  the  methods  of 
the  ordeal  could  and  must  alter  in  accordance  with  the  beliefs 
as  to  the  hereafter.     Among_almost  all  the  peoples  who  have  left___- 

behind_them_dQCum.entary  sources,  the  ordeal  by  cold  water  is 

deemed  favorable  to  the  accused  when  he  sinks  to  the  bottom,      a^- 
but  condemnatory  when  he  floats  on  the  surface;    archbishop 
Hincmar  of  Rheims,  for  example,  a  Frank  of  the  9th  Qewinvy,  .j^ 
says  of  it  (as  also  did  the  Hindu  law  of  INIanu)  :  "  Innoxii  submer-  ^^ 
guntur  aqua,  culpabiles  supernatant."  ^     And  yet   at  Babylon, 
by  the  Code  of  Hammurabi,  it  is  the  guilty  one  who  is  retained 
below  by  the  god  of  the  river,  while  the  innocent  is  restored  to  the        \ 
surface.^     Whence  this  contrariety?     Is  it  due  to  the  mere  caprice 
of  chance?     Or  does  it  mark  some  distinctive  trait  of  two  races,        | 
the   Indo-Europeans  and  the  Semites?     Neither.     A  resort  to 
Greek  annals  demonstrates  that  we  have  here,  not  a  difference 
between  racial  traits,  but    merely  a  difference  in    the  stages  of 
civilization.     For  a  long  period  they  left  it  to  the  divine  forces 
to  determine  whether  the  subject  of  the  ordeal  should  be  released 
unto  life  or  retained  for  death.     This  was  the  primitive  solution, 
simple  and  realistic ;    it  attributed  the  disappearance  to  death,       ^ 
"l^and  the  death  to  dishonor.     King  ]Minos  and  the  judge  Themison  ^ 
make  their  decision  in  the  same  way  as  does  the  Code  of  Ham- 
murabi.    But  later,  in  the  period  made  known  to  us  in  the  newer 
-__parts  of  the  Odyssey,  when  the  idea  had  developed  that  the  gods 
^_\\'ould  keep  among  themselves  the  worthiest  men,  to  bestow  upon 
Jthem  a  share  in  their  own  deathless  happiness,  the  Greeks  liked     -  " 
-^to  believe  that,  in  the  ordeal  by  immersion,  the  god  of  the  water      ^ 
_kept  to  himself  those  who  were  dear  to  him  and  repudiated  the     — 
others.     This  solution,  more  idealized  and  more  refined  in  its 
moral  element,  was  also  that  of  i\Ianu.     In  Greece,  it  finally  served 
as  a  principle  for  divination,  and  was  found  in  all  consultations 
of  the  oracles.^     The  change  is  significant.     This  simple  detail  of 
the  procedure,  altering  beneath  our  eyes,  is  not  an  arbitrary  and 
purposeless  change  in  the  rule  of  the  game.     It  reveals  the  soul  of 
a  people  in  its  deepest  beliefs,  —  its  conception  of  the  other  world. 

^Hincmar,  "De  divortio  Lotharii  et  Tetbergae,"  6  {Migne,  "Patro- 
logia,"  vol.   CXXV,  col.  665). 

2  "Code  of  Hammurabi,"  col.  V,  1.  33. 

^Scholia  of  Euripides,  "Hippolytus,"  1200;  Apollodorus,  III,  15, 
8,  3 ;    Herodotus.  IV,  154. 

••  At  Epidaurus  Limera.  they  threw  cakes  into  a  pool  (as  formerly  they 
threw  the  erring  woniMi),  and  if  the  cakes  floated,  it  was  a  sign  of  mis- 
fortune {Pausanias,  III,  23,  8). 


620  PROCEDURE  [Part  IV. 

§  4.  Changes  of  the  Ordeals  in  Historic  Times.  Death  Penalty, 
Oath,  and  Torture.  These  ordeals,  with  their  variety  of  uses,  — 
what  became  of  them  in  the  historic  period  of  Greece  ?  If  we 
concede  that  this  custom  of  law  and  religion  took  its  origin  in  a 
time  when  law  and  religion  w^ere  one,  and  when  the  State  was 
still  restricted  to  the  narrow^  circle  of  the  family,  we  shall  not  be 
surprised  to  find  that  as  justice,  religion,  and  government  become 
more  and  more  separate,  they  preserve  the  primitive  customs  while 
adapting  them  to  uses  more  and  more  distinct. 

When  the  State's  justice  attained  authority  enough  to  formu- 
late judgments  and  to  give  them  effect,  the  proof  and  the  penalty 
would  no  longer  be  merged.  And  so  the  ordeal  in  its  primitive 
form  is  not  found  in  the  annals  of  Greek  courts.  So  far  as  we  find 
it  still  used,  in  the  classic  period  and  up  to  the  end  of  the  Greek 
era,  its  persistence  is  explained  simply  by  the  circumstance  that 
the  parties  to  a  dispute  —  even  in  a  criminal  case  —  could  always 
settle  it  without  recourse  to  the  courts.  But  in  the  courts  them- 
selves, the  ordeals  had  ceased  to  be  both  proof  and  penalty  in 
one,  and  had  become  either  a  proof  or  a  penalty.  The  most 
formidable  —  those  which  imported  death,  unless  a  miracle 
interposed  —  now  served  as  capital  punishments ;  for  in  Greece, 
as  in  Rome,  the  party  condemned  to  death  was  cast  into  the  sea 
in  a  sack  (if  his  crime  had  been  specially  atrocious)  or  hurled  into 
an  abyss  (for  an  ordinary  crime).  As  a  proof,  it  had  degenerated, 
for  the  most  part,  into  a  mere  form,  or  even  a  symbolic  utterance ; 
the  oath  had  replaced  the  ordeal,  and  preserved  its  memory  in 
the  terrible  imprecation  which  it  contained ;  it  was  merely  an 
ordeal  in  words.  Nevertheless  those  persons  —  the  "  capite 
minores"  —  who  were  not  permitted  to  take  oath,  were  still 
subjected  to  an  actual  ordeal.     This  w^as  the  inquisitorial  torture. 

How  did  it  come  to  pass,  in  the  history  of  so  many  peoples,  and 
not  only  among  the  Greeks,  that  we  find  everywhere,  in  the  be- 
ginnings of  probative  procedure,  the  compulsory  alternative  of 
oath  and  torture?  The  only  logical  bond  between  these  two 
methods  is  the  imprecation.  Their  common  origin,  the  source 
of  their  lethal  potency,  is  none  other  than  the  primitive  ordeal.  .  .  . 

II.     The  Oath 

§  llj'he  Oath  in  General.^       [T]ie  oath_( o/a/co?)   is,  in  Greek 

traditional  etymoTogy,  a  ^oral__llh  "-4«mt«;g  freedom  of  a 

•  v^dyssey,  ^^ 
1  [This  first  section  is  summari/  5*  Herodes,"  Stlior's  text.] 


^ 
<> 


^4 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AND    THE    OATH  621 

man's  words  and  actions.  Over  this  barrier  the  gods  keep  watch. 
By  invoking  the  gods  in  an  oath,  a  man  binds  himself  to  another 
before  witnesses  {ixaprvpot,  Xarope<i),  the  gods.  Each  people,  each 
town,  had  its  appropriate  gods  to  invoke ;  and  different  purposes 
and  different  men  might  have  different  gods  by  whom  to  swear. 
The  form  also  varied^  A  sacred  stone  usually  marked  the  appro- 
priate spot.  In  the  Areopagus  there  were  the  stones  "of  crime" 
and  "of  accusation."  And  the  place  ordinarily  must  be  a  sacred 
one,  —  a  temple  in  general,  or  some  special  templet 

The  oath-taker  stood  erect,  his  hands  stretched  towards  heaven, 
his  eyes  looking  upwards.  Sometimes  one  hand  was  placed 
on  the  altar,  —  as  if  touching  the  god.  And  generally  a  sacrifice 
must  be  performed.  Probably  the  dramatic  sacrifices  of  the  Greeks 
originated  in  the  Orient.  In  the  most  solemn  ones,  the  oath-taker 
stood  upon  the  dismembered  victims ;  this  was  the  custom  pre- 
served at  Athens  in  the  antique  proceeding  for  homicide  ;  here  the 
sacrifice  must  be  a  triple  one,  —  not  less  than  a  boar,  a  ram,  and 
a  bull.  For  the  sacrifice,  sometimes,  might  be  substituted  some 
other  ceremony ;  the  Phocians  cast  a  mass  of  iron  into  the  sea ; 
the  parties  to  a  treaty  grasped  hands. 

The  oath-formula  was  not  complete  without  an  imprecation 
{apd)  ;  this  was  the  sanction  which  made  it  binding.  The  simplest 
was  :  "  If  faithful,  may  much  good  come  unto  me  ;  if  false,  may  evil 
come  in  place  of  good."  A  grandiloquent  form  in  Crete  ran  thus  : 
"For  those  who  swear  in  good  faith  and  keep  their  oath,  may 
children  bring  joy,  may  the  earth  produce  in  plenty,  may  the  herds 
be  fruitful,  and  may  all  other  blessings  descend  on  them  and  their 
children.  For  the  false,  may  neither  lands  nor  herds  be  fruitful ; 
may  they  perish  miserably,  they  and  their  whole  tribe." 

^Innumerable  were  the  occasions  for  which  oaths  were  use^.  Citi- 
zens, soldiers,  officials,  took  the  oath  in  all  important  undertakings. 
The  Athenians,  before  entering  on  the  political  and  judicial  duties 
of  the  assembly  of  the  Heliasts,  took  a  special  oath.  The  archons 
swore  to  govern  justly  and  according  to  the  laws.  The  citizen 
pleading  an  excuse  for  not  assuming  a  public  duty  must  verify  it 
by  an  oath  {i^cofxoa-ia,  swearing  off).  And  the  citizen  who  gave 
notice  of-  a  prosecution  against  a  member  of  the  assembly  for 
introducing  an  illegal  proposal  must  pledge  his  faith  to  this  by 
taking  oath  in  the  assembly  (vTroofxoaLa),  and  this  oath  of  itself 
served  as  a  veto  suspending  proceedings  on  the  bill,] 

In  judicial  proceedings,  we  distinguish  the  oath  of  the  judges, 
the  oath  of  the  parties,  and  the  oath  of  the  witnesses^ 


622  PROCEDURE  [Part  IV. 

§  2.    The  Judges'  Oath\ The  right  of  pronouncing  upon  the  hfe 

and  property  of  other  men  was  regarded  by  the  Greeks  as  a  func- 
tion of  divine  origin.  It  must  be  delegated  from  the  gods.  The 
judge  must  swear  to  be  responsible  before  their  sight  for  the  use 
made  of  the  right.^  /Even  in  the  imaginative  tale  of  Atlantis, 
Plato  depicts  the  ancient  kings,  assembled  in  a  court  of  justice, 
taking  oath  at  a  table  which  bears,  together  with  the  laws,  a  for- 
mula of  oath  and  imprecation. 

This  need  for  giving  to  the  judge's  decision  some  superhuman 
support  is  seen  in  two  distinct  aspects.  At  the  beginning,  the 
judge  is  merely  an  arbitrator,  even  when  the  king  is  the  judge. 
He  directs  the  proceeding,  and  proposes  some  settlement.  But 
only  when  the  proceeding  leads  to  nothing  and  the  parties  reject 
all  compromise,  —  only  then  does  he  pronounce  a  judgment  sanc- 
tified by  an  oath.  And  the  oath  has  only  a  limited  effect ;  it 
avails  only  for  the  particular  case,  i  But  in  later  times,  when 
community-justice  has  come  to  have  a  solid  position,  the  judges 
who  embody  it  in  their  office  receive  their  general  power  from  the 
gods  by  an  oath  taken  at  their  installation.  That  they  may  be- 
come once  for  all  invested  with  judicial  authority,  they  take 
the  oath  once  for  all.  And  this  oath  gives  validity  to  all  their 
(^  judgments  to  come ;  it  is  an  oath  of  investiture,  unlimited  in  its 
effects.  Plato  draws  this  precise  distinction  between  the  special 
oath,  to  be  administered  to  the  judge  "  at  the  moment  when  he  is 
about  to  render  judgment,"  and  the  general  oath  which  he  takes 
for  all  purposes,  promising  to  obey  the  laws.* 

In  the  heroic  age,  Aristotle  tells  us,^  "  the  kings  judged  some- 
times without  an  oath,  sometimes  with  one."  That  is,  in  the 
former  case,  they  followed  the  procedure  conformable  to  primitive 
custom ;  in  the  latter  case,  they  attested  the  source  and  the 
bindingness  of  their  decision  as  inspired  by  Zeus. 

This  early  practice  appears  in  the  laws  of  Gortyn.  The  judge 
is  to  render  his  decision  (StKciSBev)  according  to  the  witnesses' 
testimony  or  the  parties'  oaths,  in  the  cases  for  which  that  mode 
was  specified  ;  in  other  cases,  he  is  to  decide  upon  his  oath  {ofivvvra 
KpCveLv),  that  is,  he  is  to  furnish  proof  and  corroborate  his  deci- 
sion by  his  oath.     Even  in  those  cases  where  the  ordinary  modes 

^  Perrot,  "Essai  sur  le  droit  public  d'Athenes,"  pp.  293,  294:  "The 
oath  was  a  solemn  and  religious  act,  establishing  a  strict  bond  between 
gods  and  man ;  thus  it  was  necessary  for  the  judge.  It  raised  him  out 
of  the  crowd  and  above  it,  and  gave  him  prestige.  It  compelled  even  the 
malcontents  to  accord  to  his  decisions  an  involuntary  respect." 

2  Plato,  "Critias,"  p.  119  E ;   "Laws,"  XII,  p.  948  E. 

^Aristotle,  "Politics,"  III,  ix,  7. 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AXD    THE    OATH  623 

of  proof  were  preferred,  yet  if  they  were  lacking  or  were  insuffi- 
cient, the  judge  could  supply  their  place  by  his  oath.  The  fore- 
going instances  throw  a  clear  light  on  the  oath  of  the  "  diaetetes," 
or  arbitrators,  at  Athens.  The  public  arbitrators,  Aristotle  tells 
us  explicitly,  took  an  oath  before  pronouncing  their  decision ;  thus 
not  differing  on  this  point  from  private  arbitrators.  Both  classes, 
in  other  words,  at  the  moment  of  rendering  a  formal  judgment, 
needed  the  oath  to  give  it  executory  force ;  the  public  arbitrators 
must  take  oath  upon  the  city's  "oath-stone,"  while  the  private 
arbitrators  could  take  it  at  any  altar.  But  an  essential  differ- 
ence was  that  the  oath  of  the  public  arbitrators  was  no  obstacle 
to  an  appeal  to  a  higher  court ;  while  the  oath  of  the  private  arbi- 
trators (selected  by  the  parties)  settled  the  case  beyond  appeal. 
The  latter  method  is  clearly  exemplified  in  a  clause  in  some  con- 
tracts found  at  Delphi ;  "  the  decision  which  they  shall  render 
on  their  oaths  shall  be  supreme"  (on  Be  Ka  ovtol  KpLvcovn 'o/u,6- 
aavTe<i,  tovto  Kvptov  ecrrco). 

By  the  classic  period,  the  oath  taken  by  the  regular  judges  is 
the  oath  of  investiture  of  office.  That  of  the  heliasts  is  well 
known.  If  we  may  believe  the  orators,  it  was  thought  to  have  a 
real  influence  on  the  conscience ;  for  the  pleaders  are  continually 
referring  to  it  to  show  that  the  judges  have  a  personal  interest  in 
demonstrating  their  respect  for  the  gods,  in  deciding  according  to 
justice  and  honor,  and  in  escaping  the  fate  that  will  torture  them 
for  a  broken  oath.  Whenever,  in  Athenian  history,  special  tri- 
bunals were  constituted,  the  members  took  the  same  oath  as  the 
heliasts.  After  Cylon's  insurrection,  the  three  hundred  Eupa- 
trids,  who  were  to  pronounce  the  fate  of  tlie  murderers,  were 
placed  under  oath.  And  when  a  committee  of  fifteen  was  em- 
powered (about  332  B.C.)  to  fix  by  judicial  decision  the  boun- 
daries of  the  land  sacred  to  Eleusis,  they  swore  "  to  vote  without 
favor  and  without  malice,  in  all  justice  and  honor." 

Throughout  Greece,  the  exercise  of  judicial  functions  carried 
the  same  requirement.  The  judges  of  Egina  swore  "to  vote 
according  to  the  laws."  The  assembly  of  Eresos,  when  it  resolved 
itself  into  a  court  of  eight  hundred  and  eighty-three  persons  to 
sit  in  judgment  on  the  tyrants,  took  this  oath :  "  I  will  judge  this 
charge,  so  far  as  the  law  has  provided,  according  to  the  laws; 
and  in  other  respects  I  will  strive  to  judge  as  well  and  as  justly 
as  I  am  capable.  If  I  convict,  I  will  allot  a  penalty  that  is  right 
and  just:  So  will  I  perform,  by  Zeus  and  by  Helios."  And  the 
Amphictyons  of  Delphi,  before  judging  a  dispute,  were  to  bind 


624  PROCEDURE  [Part  IV. 

themselves  in  these  terms :  "  Called  to  decide  upon  the  goods  and 
estate  of  Apollo,  I  will  judge  the  whole  case,  so  far  as  possible, 
according  to  the  truth,  without  favor  and  without  malice,  and  in 
no  way  will  I  judge  falsely  ;  if  I  condemn,  I  will  cause  the  fines  to 
be  paid  as  fully  and  as  speedily  as  I  can,  and  will  place  them 
honestly  to  the  god's  account.  I  will  accept  no  presents,  either 
directly  or  indirectly  ;  I  will  neither  give  nor  take  from  the  sacred 
treasures.  So  will  I  perform.  And  if  I  keep  my  oath,  may  I 
receive  all  kinds  of  blessings !  If  I  break  it,  may  Themis,  the 
Pythian  Apollo,  Lato,  and  Artemis,  Hestia,  and  external  fire,  and 
all  the  gods  and  goddesses  send  me  to  a  miserable  death  and  with- 
hold all  salvation !  May  they  leave  me  no  happiness,  neither  of 
children,  nor  of  seed-time  nor  harvest,  nor  of  prosperity,  neither 
to  me  nor  my  descendants !  May  they  deprive  me  of  all  that  I 
possess,  if  I  forsw^ear  myself!"^ 

-  The  oath  of  the  judges,  as  a  security  for  their  impartiality,  was 
deemed  so  important  by  the  suitors  that  pleaders  whose  conscience 
was  not  entirely  at  ease  would  manoeuvre  to  induce  the  inad- 
vertent omission  of  the  most  formidable  phrases  of  the  oath,  or 
would  erase  the  names  of  the  judges  from  the  pillar  w^here  the  oath 
was  inscribed.  The  orators  several  times  mention  these  attempts  ; 
e.g.  that  of  INIidias,  with  the  judges  of  the  choregi,  and  that  of 
Euboulides'  followers,  with  the  judges  of  a  ward  court. 

§  3.  The  Parties'  Oath.  At  the  outset  of  the  proceeding,  the 
two  parties  must  take  oath,  /  This  w^as  known  as  the  contradic- 
tory oath,  "antomosia"  or  "diomosia"  (avrcofioaia,  Stco/j^oa-io). 
It  was  obligatory,  without  exception  on  either  side ;  no  other  course 
would  have  been  thought  possible.  But^t  was  by  no  means  a 
promissory  oath,  with  a  moral  purpose.!  It  was  a  declaratory 
oath,  analogous  to  the  Roman  "litis  contestatio,"  —  a  sort  of 
declaration  of  legal  war.  In  this  oath  the  adversaries  join  in 
the  struggle.  They  define,  irrevocably,  the  subject  of  the  dispute, 
not  only  to  bind  themselves  as  against  each  other  and  as  against 
the  judge,  but  also  to  bind  the  judge  in  relation  to  them.. 

The  early  form  of  this  oath  is  explained  by  the  trial  scene  de- 
picted in  the  Iliad  on  Achilles'  shield.  The  demandant  declares 
before  the  people  that  he  has  not  received  the  composition  price 
for  a  blood-feud,  the  opponent  declares  that  he  has  paid  it,  and 
they  agree  to  lay  the  dispute  before  the  arbiter.  Complete  these 
*  declarations  by  an  oath,  and  w^e  have  the  "antomosia."     Far 

1  "  Bulletin  de  correspondance  hellenique,"  XXVII  (1903),  p.  107, 
B,  1.  10-16. 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AND    THE    OATH  625 

from  being  a  restraint  on  the  perjurer,  or  from  showing  (as  some 
German  scholar  has  suggested)  that  the  Athenian  people  were 
not  a  "Rechtsvolk" ;  far  from  being  a  purely  religious  institution 
(as  others  have  believed),  destined  to  substitute  ultimately  the 
justice  of  the  gods  for  the  fallible  justice  of  men ;  and  far  from 
being  a  mere  degenerate  relic  of  the  decisory  oath,  —  this  intro- 
ductory oath,  on  the  contrary,  is  merely  a  remnant  of  primitive 
procedure,  sharply  defined  in  its  own  special  field  of  legal  ideas, 
and  distinct  in  the  very  beginning  from  the  decisory  oath  tendered 
by  way  of  proof.  "  When  the  State's  justice  was  as  yet  in  its  first 
stages,  a  dispute  at  law  had  necessarily  to  be  preceded  by  a  bi- 
lateral agreement,  an  agreement  to  arbitrate,  confirmed  by  an 
oath.  Later,  this  part  of  the  proceeding  no  longer  answered  that 
actual  need ;  but  it  continued  to  serve  as  an  acknowledgment  of 
the  authority  of  the  judge  or  to  create  the  authority  of  the  arbi- 
trator, and  at  the  same  time  to  define  the  position  taken  by  each 
of  the  parties.  .  .  . 

At  Athens  the  "^antomosia"  was  indispensable  in  every  lawsuit ; 
it  gave  its  name  to  the  document  containing  the  claims  of  the 
parties,  and  it  was  required  even  in  controversies  where  there  was 
strictly  neither  plaintiff  nor  defendant.  It  signified  that  each 
pleader  was  required  to  state  in  advance,  under  oath,  how  he 
presents  his  case  and  in  what  sense  he  understands  the  proceeding. 
Only  one  formula  of  the  "antomosia"  is  extant;  it  occurs  in  the 
law  of  Gortyn  concerning  unlawful  distraint.  Before  suit  begun, 
this  oath  must  be  taken  :  "  The  seizure  was  made  without  wrong- 
ful intent  and  lawfully,  but  without  touching  the  person  against 
whom  it  was  directed."  .  .  . 

But  in  addition  to  this  introductory  oath,  primitive  procedure 
used  an  oath  also  as  a  means  of  proof.  This  probative  and 
"decisory"  oath  originated  in  the  ordeal,  the  "decision  of  God." 
The  ordeal  was  an  oath  in  action ;  the  oath,  an  ordeal  in  words: 
The  Hellenes  had  certainly  once  employed  the  decision  of  God ; 
but  so  primitive  a  mode  of  proof  came  to  be  early  repugnant  to 
them.  In  place  of  the  moral  concept  that  a  god  would  protect 
the  right,  they  developed  by  preference  the  legal  concept  of  the 
oath  of  purgation.  In  its  later  stage,  this  oath  could  be  tendered 
to  a  party  by  his  opponent ;  but  at  the  outset  it  was  required  of 
him  by  the  "themis"  of  the  gods,  the  judge  being  their  mouth- 
piece. Such  was  the  oath  imposed  by  Rhadamanthus,  which 
"ends  all,  quickly  and  rightly."  ^  In  the  Iliad,  ]Menelaus,  the 
^  Plato,  "Laws,"  XII,  p.  948,  B,  C. 


626  PROCEDURE  [Part  IV. 

king,  tenders  the  oath  to  Antilochus ;  but  his  defiance  is  uttered, 
not  as  party,  but  as  king  and  judge;  and  Antilochus  takes  the 
oath  as  a  defendant. 

Such  are  the  two  primitive  ideas  in  the  oath-procedure.  They 
appear  in  use,  from  time  to  time,  throughout  a  long  period,  and 
in  criminal  as  well  as  in  civil  actions.  In  the  Homeric  Hymns, 
the  bold  thief  of  the  bullocks,  Hermes,  seeks  to  extricate  himself 
by  proposing,  first  to  Apollo,  who  threatens  him,  and  then  to 
Zeus  who  is  chosen  as  arbiter,  to  take  "the  great  oath."  In  a 
famous  painting  of  Polygnotus,  Ajax,  under  accusation  by  Cas- 
sandra, and  summoned  by  the  Fates  to  exonerate  himself  by 
oath,  is  advancing  to  the  altar,  to  save  himself  by  a  perjury.  The 
poet  Theognis  records  his  indignation  against  those  who  invoke 
the  name  of  the  gods  to  repudiate  a  debt.  Herodotus  recounts  at 
great  length  the  story  of  the  Spartan  Glaucus  who  was  tempted 
by  the  treasures  left  in  his  charge  and  went  to  ask  the  oracle  of 
Delphi  whether  he  might  appropriate  them  and  escape  by  a  false 
oath. 

In  almost  all  these  well-known  instances,  the  accused  perjures 
himself  cynically ;  and,  in  all,  the  defeated  accuser  remains  con- 
vinced of  his  own  righteous  claim.  An  unfortunate  and  fruitless 
proceeding,  one  might  say.  And  to  remedy  that  shortcoming, 
means  were  sought  by  the  law-makers  to  determine  which  of  the 
parties  ought  to  have  the  exclusive  right  to  make  oath ;  or,  if  both 
were  to  take  it,  which  should  have  the  prior  right  to  take  it  and  be 
credited. 

The  best  illustration  of  this  stage  of  the  development  is  found 
in  the  law  of  Gortyn.  The  judge's  decision  must  be  determined 
by  the  party's  oath  in  certain  classes  of  cases,  viz.  when  the  ordi- 
nary method  of  proof  by  witnesses  is  inapplicable  or  inadequate. 
Sometimes  only  one  of  the  parties  is  obliged  or  allowed  to  take  the 
decisory  oath ;  sometimes  both  are  allowed,  but  one  of  them  is 
deemed  legally  more  credible  {6pKi(OT€po<i) .  Usually,  the  defendant 
alone  makes  oath  or  has  the  right  of  superior  credibility.  The 
judge  may  tender  this  exculpatory  oath  {cnrofj-ocrat)  to  a  woman 
divorced,  on  a  charge  of  sequestration  of  property  or  any  other 
claim  and  to  a  merchant  denying  a  debt  to  a  co-merchant.  The 
plaintiff,  on  the  other  hand,  is  the  one  to  take  the  decisory  oath 
(o/xocraL)  when  he  seeks  to  renew  an  instrument  of  defendant 
after  the  death  of  the  debtor,  or  when  he  sues  an  adulterer  and 
rebuts  the  plea  of  collusion.  The  defendant,  again,  has  the  righ+ 
of  superior  credibility,  when  a  woman  is  charged  with  having  faile  ' 


Ik 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AXD    THE    OATH  627 

to  make  formal  declaration  of  a  child  born  after  divorce,  or  when 
a  judge  is  charged  with  exceeding  the  lawful  term  for  a  judgment. 
The  demandant,  on  the  other  hand,  has  the  right  of  superior 
credibility  when  a  female  slave  complains  of  rape  by  her  master, 
or  when  the  owner  of  an  animal  killed  or  maimed  claims  damages 
after  demand  made  on  the  opponent.  _But  the  general  rule,  apart 
from  such  special  cases,  was  for  the  defendant  to  make  the  decisory 
oath.  ]\Ioreover,  in  that  case,  the  exculpatory  oath  of  itself 
sufficed  ;  whereas  the  plaintiff's  oath  always,  and  the  defendant's 
when  he  was  merely  privileged  as  the  more  credible,  must  be 
supported  by  the  oath  of  compurgators  or  of  the  attesting  wit- 
nesses to  a  document  (the  only  exception  here  was  that  of  the  fe- 
male slave  complaining  against  her  master,  but  then  obviously 
there  could  be  no  compurgators  nor  documentary  witnesses). — 
All  these  rules  are  reminiscent  of  the  earlier  spirit ;  but  the  sign 
of  the  future  was  the  rule  that,  in  suits  between  co-merchants  the 
exculpatory  oath  was  tendered  to  the  defendant  by  the  plaintiff. 

In  this  transitional  stage  belong  also  other  documents  (none  of 
which  are  x^thenian).  One  of  them  tells  us  that  certain  followers 
of  Pythagoras  had  only  to  take  oath,  to  escape  a  fine,  i.e.  as  de- 
fendants they  were  to  take  the  exculpatory  oath.  Again,  a  law 
of  Halicarnassus,  passed  in  the  5th  century  B.C.,  after  some  civic 
disturbances,  allowed  a  period  of  eighteen  months  for  the  exiled 
citizens  to  reclaim  their  landed  property;  pending  this  period, 
they  were  still  presumed  owners,  and  thus  the  disseisor  would 
virtually  be  demandant,  though  nominally  the  exile-claimant  took 
that  role ;  hence  the  privilege  given  him  by  this  law  of  taking  the 
decisory  oath,  confirming  it  by  a  declaration  of  the  record-clerks, 
was  an  exception  to  the  general  rule ;  but  after  the  expiration  of 
the  term,  the  possessor  of  the  land  became  the  presumptive  owner, 
and  so  was  entitled,  in  case  of  claim  by  the  exile,  to  take  oath  as 
defendant,  on  the  usual  principle,  and  this  oath  (to  be  exacted  by 
the  judges,  in  the  opponent's  presence,  immediately  upon  receiv- 
ing their  fees)  was  of  itself  decisory.  Again,  the  documents  of 
Ptolemy  Philadelphus,  dealing  with  fiscal  affairs,  reveal  to  us  the 
officials  of  the  oil  department  called  upon  to  defend  certain  official 
conduct  by  making  oath. 

In  the  law  between  nations  and  between  private  associations, 

we  find  again  the  party's  oath,  recalling  the  primitive  methods. 

'A  treaty  between  Athens  and  Lacedsemon  provides  that  all  dif- 

'erences  that  may  rise  shall  be  settled  "by  way  of  law  and  oaths" 

\Kaiw  Kal  opKoa).     ^Yhen  the  Argives  demanded  of  Epidaurus 


628  PROCEDURE  [Part  IV. 

a  sacrifice  Avhich  the  latter  deemed  not  due,  it  was  agreed  that  the 
oath  should  be  tendered  first  to  the  respondent  city,  and  if  it  de- 
clined, then  to  the  claimant  city.  And  again,  in  the  regulations 
of  the  Labyads  at  Delphi,  any  member  of  the  fraternity  who  dis- 
puted the  lawfulness  of  a  fine  imposed  upon  him  was  to  go  quit,  if 
he  exonerated  himself  by  formal  oath  ;  the  ordinance  tlnis  ])hrasing 
the  rule  for  exculpation :   'e^o/ji6aa<;  rorj  vofjufxov  opicov  XeXvaOto. 

The  Athenian  laws  show  us  the  last  stage  in  the  parties'  deci- 
sory  oath ;  for  Solon  no  longer  gave  it  a  place  in  his  legislative 
reforms.  Only  in  total  lack  of  witnesses  or  documents  was  there 
to  be  any  recourse  to  the  parties'  oaths ;  and  even  then,  neither 
party  was  obliged  to  take  oath  ;  either  was  at  liberty  to  do  so,  and 
the  judges  were  to  weigh  their  respective  credibility  (TroVe/oo? 
euopKei)  according  to  the  circumstances  of  each  case.  This 
advanced  stage  (which  may  be  contrasted  with  that  of  the  Roman 
"legis  actio  sacramenti")  is  a  long  remove  from  the  oath  com- 
pulsorily  tendered  and  made  decisive.  The  decision  here  is  made, 
not  by  the  party's  performance  of  the  oath,  but  by  the  judge's 
persuasion.  The  party  tenders  or  refuses  the  oath,  when  called 
upon,  at  his  own  risk  of  the  inferences  therefrom.  It  might  even 
happen  that  one  party  would  ask  for  the  opponent's  oath  and  also 
tender  his  own  oath,  thus  either  forcing  the  opponent  to  refuse,  or 
at  least  getting  the  benefit  of  the  contrasting  oaths.  And  the  two 
oaths  might  thus  leave  the  case  no  better  than  before.  The 
pleaders  developed  to  perfection  the  various  inferences  to  be 
drawn  from  one  party's  offering  his  own  or  demanding  the  oppo- 
nent's oath,  and  from  the  acceptance  or  refusal  of  this  challenge 
by  the  opponent.  In  general  (it  would  seem)  one  could  without 
losing  one's  cause  decline  the  oath  when  demanded  by  the  other 
party ;  but,  as  in  such  a  case  the  refusal  was  equivalent  to  a 
confession,  the  refusing  party  would  have  to  restore  the  balance 
by  challenging  the  first  party  to  take  the  oath  himself.  Sometimes 
the  oath-taker  must  deposit  security.  But  on  the  whole  the  law 
gave  entire  liberty  of  conduct  to  the  parties  and  entire  liberty  of 
decision  to  the  judges. 

There  were,  to  be  sure,  one  or  two  classes  of  cases  in  which  the 
party's  oath  was  actually  decisory,  because  any  other  rule  would 
have  been  plainly  unfair.  In  these  exceptional  cases  the  oath- 
ceremony  was  of  special  solemnity,  and  the  opponent,  who  phrased 
the  formula,  watched  carefully  to  detect  any  evasion.  Such  a 
case  was  that  of  a  claim  for  the  restoration  of  goods  informally 
bailed  or  of  an  ordinary  loan  made  without  writing  ;  all  the  Greek 


Chap.  XXXI,  §  4.]        THE    ORDEAL   AND    THE    OATH  629 

systems  of  law  here  preserved  the  rule.  ^  But  the  Athenian  law, 
when  in  such  cases  it  provided  for  putting  the  defendant  to  his 
oath,  did  not  oblige  the  plaintiff  to  rely  solely  on  the  divine  pun- 
ishment for  perjury ;  for  it  allowed  the  plaintiff  a  special  exit,  by 
way  of  rebuttal  {hUr]  7rapaKaTa6^Kr)<;)  ;  -  e.g.,  where  the  heir 
was  sued  for  his  ancestor's  liabilities,  and  no  other  proof  was  avail- 
able, the  heir  might  exonerate  himself  by  an  oath  of  ignorance ; 
yet  the  claimant  was  entitled  to  refuse  to  consent  to  this  oath, 
provided  he  was  willing  to  risk  the  inferences.  Thus,  even  in  these 
exceptional  cases,^  the  Athenian  law  remained  faithful  to  its  gen- 
eral spirit,  viz.  to  concede  as  little  importance  as  possible  to  the 
parties'  oath.  And  Solon  allowed  it  to  remain  in  form  only ;  for 
he  desired  not  to  break  too  roughly  with  inherited  institutions, 
nor  to  sliock  too  rudely  the  customs  of  Athenian  life.  .  .  . 

§  4.  riie  Witness'  Oath.  —  In  primitive  law,  the  oaths  of  parties 
and  witnesses  are  not  distinguished.  The  witnesses  take  sides 
with  the  parties.  They  do  not  testify  to  their  knowledge ;  they 
merely  express  their  favor  for  one  side  or  the  other ;  and  they  are 
to  do  this  publicly  and  forma]lyp(^n  other  words,  they  are  rela- 
tives and  friends  who  act  as  sworn  partisans,  i.e.  co-swearers, 
compurgators.'^  This  custom  was  found  in  early  Greece  as  well 
as  among  the  Germanic  tribe^  It  represents  the  transitional 
period  in  procedureAvhen  the  private  clan-feud  has  passed  away, 
but  the  method  of  proof  by  disinterested  witnesses  has  not  yet 
arrived  ;  in  this  interim  stage  the  members  of  the  respective  families 
and  clans  support  their  relative  by  appearing  with  him  in  court. 

The  compurgation  procedure  was  in  vogue  in  the  Homeric 
period.^     And  Aristotle  mentions  the  existence  at  Kyme,  in  .Eolis, 

1  Under  similar  eireumstanees  the  exculpatory  oath  appears  naturally 
in  Egypt  under  the  rule  of  the  Greek  Ptolemies.  Here  is  a  complaint 
deciphered  from  the  papyri  of  Magdola :  "To  king  Ptolemy,  hail!  I, 
Theonides,  of  the  village  of  Apollonias,  am  wronged  by  Seuthes,  of  the 
same  village.  I  had  lent  him  without  writing  five  measures  of  barley, 
and  he  had  promised  to  repay  them  when  the  harvest  was  gathered ; 
that  time  has  passed,  and  he  has  not  repaid  me,  though  often  demanded. 
Therefore  I  ask  you,  oh  king,  if  it  seems  proper,  to  order  the  judge  Dio- 
phanes  to  write  to  the  bailiff  Agathocles  to  send  Seuthes  to  him,  and  if  I 
speak  truth,  to  have  Diophanes  make  him  pay  me  what  is  due ;  and  if  he 
sivears  that  he  oioes  tne  nothing,  to  discharge  him;  so  that  I  suffer  no  wrong, 
but  obtain  justice  by  resorting  to  you,  oh  king,  benefactor  of  all.  J^are- 
well."      ("Bulletin  de  correspondance  hellenique,"  XXVII,  1903,  p.  178.) 

-  Isocrates  composed  the  "Oration  against  Euthynos"  and  the  "Tra- 
peziticus"  for  cases  of  this  sort. 

'  Which  were  so  restricted  that  e.g.  a  wife  was  allowed  to  swear  as 
witness  to  the  paternity  of  her  children  but  not  as  party  to  prove  her  own 
marriage. 

*  Although  no  one  passage  clearly  exhibits  it ;  the  court  scene  in  the 
Iliad,  for  example,  mentions   the  helpers   (dptoyol)  for  each  pleader;    but 


630  PROCEDURE  [Part  IV. 

of  a  law  "of  antique  simplicity"  by  which  a  person  charged  with 
homicide  is  declared  guilty  if  the  accuser  produces  from  among 
his  relatives  a  certain  number  of  witnesses.  And  an  ancient 
law  of  Athens,  sanctioned  by  Draco,  reveals  the  same  feature ; 
on  the  trial  of  a  homicide,  the  chief  accuser  is  to  be  joined  by  his 
farthest  relatives  and  the  members  of  his  phratry,  the  relatives 
making  oath  of  their  status.  At  Kyme  as  at  Athens,  these  rela- 
tives, of  course,  were  originally  co-swearers,  party- witnesses. 
As  time  passed,  they  took  on  the  special  character  either  of  ordi- 
nary witnesses  {/xdpTvpe<;) ,  as  at  Kyme,  or  as  joint  party-com- 
plainants {(TwhioiKeLv)  as  at  Athens.  Their  original  technical  name 
is  disclosed  to  us  in  some  fragments  of  private  law  found  at  Crete  : 
'opKco/xorat,  and  perhaps  also  'o/xcofioTat  (co-swearers)  ;  their  duty 
was  to  "  come  up  together  and  swear  the  case  "  (a-vveKcro/jioa-aa-OOai). 
Again,  the  law  of  Gortyn  required  that  the  party  should  in  certain 
cases  appear  with  co-swearers  in  number  proportioned  to  the 
penalty  involved  (virtually,  according  to  the  rank  of  accuser  and 
accused).  In  a  charge  of  adultery,  if  the  defendant,  taken  in  the 
act,  pleaded  a  collusive  trick  of  the  husband  as  his  defence,  the 
husband  took  oath  affirming  the  detection  in  the  act  and  denying 
any  trick,  and  this  oath  he  took  "five-handed"  (i.e.  with  four 
others)  if  he  belonged  to  a  brotherhood,  or  "three-handed,"  if 
a  free  man  of  inferior  rank,  or  two-handed,  if  a  serf ;  the  oath 
(including  the  imprecation)  being  the  same  for  the  co-swearers 
as  for  the  parties.  So,  too,  in  the  treaty  between  Chaleion  and 
Q^anthe,  we  read  of  co-swearers  (eVco/LioTat)  who  are  to  attend  the 
resident  aliens,  —  fifteen  or  nine,  according  to  the  amount  in- 
volved. And  in  all  of  these  instances,  there  was  no  question  of 
weighing  the  testimony,  but  merely  of  counting  the  witnesses ; 
at  Gortyn,  for  example,  the  law  expressly  says  that  "the  party 
who  wins  is  he  for  whom  the  greater  number  make  oath"  {viKev 
S'oTepd  KOi  irXle^  ofioaovri). 

The  development  of  co-swearing  into  ordinary  witness-proof 
naturally  and  gradually  lessened  the  importance  of  the  oath 
itself.  The  change  can  be  seen  in  two  features  especially  ;  (1)  the 
oath  follows,  instead  of  preceding,  the  witness'  statement,  and 
(2)  it  becomes  optional,  not  obligatory. 

(1)  In  the  ancient  town  of  Ascra  (Hesiod's  birthplace),  the 
witness  is  recorded  as  beginning  with  the  oath.     And  in  the 

they  are  not  compurgators ;  they  mix  with  the  crowd,  and  are  kept 
back  by  the  heralds ;  they  do  not  take  part  in  the  proceedings,  and  the 
judges  do  not  act  upon  their  oaths. 


Chap.  XXXI,  §  4.]        THE    ORDEAL    AND    THE    OATH  631 

antique  homicide  proceeding  surviving  at  Athens,  the  oath  is 
required  first  of  all  from  the  witnesses;  and  the  name  itself,  "co- 
oath"  (Bico/jLocria)  reveals  the  trace  of  a  period  when  witnesses  were 
mere  partisans.  At  Gortyn,  on  the  other  hand,  the  oath  is  no 
longer  promissory  in  form,  and  the  witnesses  take  oath  after  their 
testimony  is  given ;  the  oath  is  still  the  important  thing,  but  it  is 
merely  declaratory  of  the  truth  of  the  testimony  already  given. 

(2)  At  Gortyn,  furthermore,  we  find  a  transition  stage  between 
required  compurgation  and  optional  testimony.  The  oath  is 
required  only  for  special  classes  of  cases  ;  but  in  these  the  witnesses, 
though  no  longer  strictly  co-swearers,  are  either  attesters  of  a 
document  or  other  required  witnesses  who  make  oath  ivith  the 
party.  Thus,  when  a  creditor  sues  to  revive  an  instrument  of 
debt,  the  judge  and  the  record  clerk  are  called  to  prove  the  docu- 
ment ;  to  certify  that  the  owner  of  an  animal  killed  or  maimed  has 
performed  all  the  formalities,  two  documentary  witnesses  must 
be  produced ;  to  prove  that  the  child  of  a  divorced  woman  has 
been  presented  for  acknowledgment  to  the  husband,  documentary 
witnesses  must  be  produced  (varying  in  number  with  the  woman's 
status).  In  all  these  cases  the  witnesses  make  oath  icith  the  plain- 
tiff (or,  in  the  woman's  case,  with  her  relatives  or  guardian). 
Thus  the  law  of  Gortyn,  like  that  of  Draco,  preserved  the  compul- 
sory oath,  but  in  limited  cases  only.  And  both  of  them  exhibit 
the  transition  from  compurgation  to  optional  witnesses. 

But  the  last  stage  of  this  development  was  to  be  seen  at  Athens, 
in  the  procedure  of  the  popular  courts.  There  the  witness'  oath 
had  become  merely  a  warranty  of  the  testimony,  optional  and 
supplementary,  or  perhaps  a  special  proof  accepted  by  the  parties. 
Usually  the  oath  was  administered,  on  the  preliminary  hearing, 
after  taking  the  depositions,  by  the  witnesses  on  one  side,  on  demand 
by  the  other  side.  Sometimes  it  was  taken  at  the  trial,  after  read- 
ing the  depositions.  Sometimes  the  witnesses  themselves  offered 
to  confirm  their  testimony  by  their  oath,  —  as  when  they  were 
directly  interested  in  the  case  or  related  to  the  parties.  The 
judge's  discretion  was  theoretically  free ;  yet  in  some  cases  the 
oaths  practically  carried  the  decision  with  it,  —  as  where  the  parties 
had  by  contract  made  it  decisory,  but  this  would  have  an  extra- 
judicial basis.     In  essence,  the  witness-oath  was  optional. 

But  how  often  was  it  employed,  in  practice?  As  late  as  the 
5th  century  B.C.,  testimony  and  oath  were  still  inseparable.  But 
by  the  4th  century  this  was  so  no  longer.  In  the  ordinary 
trials  of  that  period  at  Athens,  the  witness'  confirmatory  oath  was 


Y' 


632  PROCEDURE  [Part  IV. 

reduced  to  a  minimum,  —  mostly,  a  mere  signature  at  the  bottom 
of  a  deposition.  Athens  had  gone,  in  its  system  of  proof,  almcst 
to  the  end  of  the  road  leading  from  partisan  compurgation  to  a 
purely  rational  probative  testimony,  freed  from  all  religious  ele- 
ment. The  procedure  of  the  Areopagus  Senate  had  stopped  with 
the  oath  as  compulsory  and  promissory ;  the  procedure  of  Gortyn 
had  gone  as  far  as  the  oath  declaratory  but  still  compulsory ; 
the  Helisea  made  the  oath  bo^h  declaratory  and  optional.^  .  .  . 

§  5.  The  Contract-Oath.  {The  Greeks  employed  the  oath,  in 
innumerable  ways,  in  the  affairs  of  private  life.  The  phratries 
and  other  associations  made  use  of  it  for  admitting  their  members ; 
a  father,  for  example,  presenting  his  child  to  a  phratry  (a  form 
equivalent  to  our  registration  of  civil  status)  must  make  oath 
"that  the  child  here  presented  was  born  in  lawful  marriage  of 
himself  and  a  citizeness."  And,  notably,  oaths  of  peace  and  alli- 
ance between  individuals  common  enough  in  primitive  and  legen- 
dary times  (for  example,  between  Achilles  and  Agamemnon) 
developed  the  promissory  or  contract-oath.]  .  .  .  This  served  to  give 
authenticity  and  validity  to  ordinary  contracts,  and  was  widely 
used  in  Greece,  as  well  as  in  Assyria  and  Egypt.  This  contract- 
oath  might  confirm  a  promise  of  marriage,  or  a  partition  of  an 
estate,  a  bailment,  a  loan,  or  a  lease.  At  Thebes,  the  custodian 
receiving  in  charge  an  abandoned  child  took  oath  formally  to  bring 
it  up.  In  Egypt,  under  the  Greek  Ptolemies,  the  farmers  and  their 
sureties  bound  themselves  to  the  treasury-official  by  a  "royal 
oath";  as  did  also  the  shipmasters  who  contracted  to  deliver 
their  cargo  at  destination.^ 

"The  contract  of  sale  and  purchase,"  said  Theophrastus,  in 
his  lost  treatise  on  Greek  law,  "  is  complete,  as  regards  the  buyer, 
when  the  price  is  paid  and  the  lawful  formalities  performed,  .  .  . 
such  as  the  oath."  It  does  not  appear  that  this  practice  obtained 
at  Athens  ;  .  .  .  but  it  is  recorded  at  Halicarnassus ;  for  there  the 
purchaser  of  goods  sold  by  a  temple  w^ould  take  a  covenant  of 
perpetual  possession,  not  merely  from  the  gods  as  guarantors,  but 
also  from  the  temple  officials,  who  took  oath  as  co-warrantors 
with  the  gods.  At  ^^Enos,  to  prevent  impersonation  of  the  vendor 
and  to  give  publicity  to  the  transfer,  the  vendee  of  the  land  must 
offer  a  sacrifice  (proportionate  to  the  value  of  the  estate),  and  must 

^  [The  author  then  describes  three  exceptional  eases  where  the  com- 
pulsory oath  was  preserved,  viz.,  women-witnesses,  in  certain  cases; 
witnesses  who  are  unable  to  appear  at  the  trial  to  confirm  their  deposi- 
tions ;   and  witnesses  alleging  an  excuse  for  not  testifying.] 

-  Kenyon,  "Papyrus  of  the  British  Museum,"  II,  No.  301. 


Chap.  XXXI,  §  4.]         THE    ORDEAL    AXD    THE    OA.TH  633 

take  oath,  before  the  altar,  in  the  presence  of  a  recording  official 
and  three  residents,  as  follows :  "  I  am  buying  this  lawfully,  with- 
out collusion,  or  trick,  or  fraud  of  any  sort ;"  and  the  vendor  must 
swear,  "I  am  selling  without  fraud."  Without  this  formality  the 
officer  must  refuse  to  record  the  sale,  and  his  oath  of  office  imposed 
on  him  this  duty.  This  explains  why  the  Cnidians  termed  their 
record-office  "the  record  of  oaths"  {to  ypacjjelov  rcov  op/ccov).  .  .  . 

In  contracts  for  public  works,  the  contract-oath  played  a  large 
part.  When  the  Athenians  set  about  repairing  their  Long  Walls, 
the  successful  bidders  for  the  undertaking  were  obliged  by  the 
terms  to  take  oath  before  the  Council.  In  an  inscription  of  Eretria, 
a  contract  for  draining  the  marsh  is  accompanied  by  an  ordinance 
fixing  the  procedure  and  the  formulas  for  the  oaths ;  all  the  citi- 
zens and  youths  bound  themselves  to  the  contractor  and  his  heirs 
by  this  oath,  to  be  pronounced  after  the  ofiicers :  "  I  swear,  by 
Apollo,  Lato,  and  Artemis,  to  leave  to  Chairephanes  the  possession 
of  the  lands  gained  from  the  marsh,  on  the  terms  assented  to  by 
the  city  ;  if  any  one  tries  to  violate  the  contract  made  with  Chaire- 
phanes, I  will  oppose  him  with  all  my  power,  in  accordance  with 
our  common  oath ;  if  I  keep  my  oath,  may  much  good  fortune 
come  to  me  ;  if  I  break  it,  may  I  be  destroyed,  I  and  my  property." 
And  the  contractor,  on  his  part,  was  to  give  sureties  who  should 
make  oath  that  the  work  would  be  performed. 

The  oath  served  also  to  warrant  a  recital  of  fact  inserted  in  a 
contract.  For  example,  in  a  contract  of  lease,  the  lessee  must 
affirm  on  oath  before  the  lessors  that  he  had  spread  on  the  lands  the 
agreed  quantity  of  manure.  This  application  of  the  oath,  while 
unusual  in  Greece  itself,  was  frequent  in  the  later  Greco-Egyptian 
contracts.  Under  Ptolemy  Philadelphus,  the  farmers  who  sold 
their  oil-crop  to  the  government  made  oath,  in  their  contract  of 
sale,  how  much  seed  they  had  put  in ;  in  the  duplicate  contract 
between  the  tax-officers  of  the  vineyards  and  the  vine-dressers, 
both  parties'  recitals  must  be  confirmed  by  the  "  royal  oath"  ;  and 
the  statements  made  upon  the  recording  of  a  transfer  must  be 
verified  by  oath,  the  documentary  recital  of  the  oath  serving  to 
give  validity  to  the  transaction. 

§  6.  False  Oath.  Habitual  oath-taking  leads  soon  to  per- 
jury. And  the  Greek,  only  too  often,  behaved  as  if  (in  a  phrase 
proverbial  in  his  country)  "the  old  gods  had  been  supplanted 
by  new  gods."  The  Romans,  we  know,  were  scandalized  by 
"  Greek  honor."  Was  this  vice  a  feature  of  their  decadent  period  ? 
By  no  means.     As  early  as  the  Odyssey,  we  learn  that  it  was 


634  PROCEDURE  Part  IV. 

esteemed  meritorious  to  be  skilful  in  profiting  as  much  fron>ttom 
oath  as  from  a  theft.  And  Sophocles  dramatizes  a  fal&mcst 
without  a  word  of  censure.^  The  rhetoricians  and  the  s(to  a 
served  as  a  manual  of  perjury,  at  the  service  of  litigants.  .   ele- 

Nevertheless,  the  practice  did  not  come  entirely  easy,  'th 
had  to  deceive  one's  conscience.  One  must  use  the  gods  as  gently 
as  might  be.  The  object  was  to  observe  the  letter  of  the  oath 
while  evading  its  spirit.  Nowhere  more  than  in  Greece  has 
wider  use  been  made  of  the  oath  of  double  sense,  or  sophistical  oath. 
A  sly  fellow  (one  anecdote  runs)  refuses  to  restore  a  sum  of 
money  left  in  trust ;  he  hides  it  in  the  hollow  of  his  staff ;  at  the 
moment  of  taking  the  oath  of  exculpation,  he  hands  the  staff  to 
the  plaintiff  to  hold ;  thus  he  truly  swears  that  he  has  delivered 
to  the  plaintiff  what  is  due  him  ;  and  yet  he  can  keep  it  all,  —  even 
the  favor  of  the  gods.-  Or,  again,  a  rascal  who  has  stolen  a  fish  in 
the  market  slips  it  deftly  into  another's  basket ;  now  he  can  swear 
with  a  safe  conscience  that  he  has  it  not,  nor  knows  of  any  other 
person  who  took  it.  And  Chillon,  faithful  strictly  to  his  oath  as 
judge,  cast  his  own  vote  for  the  death  penalty  against  a  friend  of 
his  on  trial  —  but  persuaded  his  two  colleagues  to  vote  for  ac- 
quittal. .  .  . 

These  hypocritical  practices  led  to  a  reaction.  The  distinction 
between  the  letter  and  the  spirit  came  to  be  emphasized.  But  this 
itself  gave  rise  to  quibbles  equally  dangerous.  Euripides,  the 
master  of  Greek  casuistr}^  expressed  the  principle  in  the  cele- 
brated line:  ^  "The  tongue  has  sworn,  but  not  the  mind."  And 
some  of  the  moral  philosophers  discussed  the  conditions  requisite 
for  the  bindingness  of  oaths,  in  manner  of  the  jurists  concerning 
contracts.  .  .  . 

The  Athenians,  to  be  sure,  imagined  themselves  to  be  notably 
superior  to  the  other  Greeks,  in  their  strict  adherence  to  their 
pledged  word;  they  boasted  of  "Attic  honor."  They  were 
piqued  with  Euripides  for  having  turned  an  epigram  on  the  excuse 
of  false  swearers,  even  though  he  did  make  the  hero  Hippolytus 
perish  as  a  victim  of  his  own  perjury.  In  private  affairs,  they 
conceded  (with  Pericles)  that  a  man  should  stand  by  his  friends 
"up  to  the  very  foot  of  the  altar";  while  in  public  affairs  they 
maintained  that  they  were  bound,  even  as  are  heirs  by  the  oaths 
of  their  ancestors.     The  Spartans  they  accused  of  a  deplorable 

1  Odyssey,  XIX,  395;    Sophocles,  "Eleetra,"  47. 

2  [This  anecdote  may  be  found  again  in  ."Don  Quixote,'!  e.  LXXVII.l 
*  "Hippolytus,"  612. 


Chap.  XX^I-  §  4]        THE    ORDEAL   AND    THE    OATH  635 

take  oa-it  for  perjury.  .  .  .  The  Thessalians  likewise  they  re- 
and  th  as  perjurers.  As  for  the  Cretans,  their  reputation  as  liars 
out  eong  been  made.  .  .  . 

swear-iinst  this  abuse  of  the  oath,  the  highminded  Greeks,  and  the 
offir.ers  of  philosophy,  sought  to  devise  a  remedy.  ^Nlany  persons, 
moved  by  religious  scruple  or  by  more  practical  considefrations, 
adopted  the  custom  of  substituting  for  the  invocation  of  the  deity 
some  expletive  which  signified  nothing.  Rhadamanthus,  accord- 
ing to  the  legend,  had  recommended  to  swear  by  some  animal  or 
plant;  and  accordingly  we  hear  of  Lampon,  the  priest,  swearing 
"by  the  goose";  of  Zeno,  the  philosopher  of  Citium,  "by  the 
caper";  of  others,  "by  the  cabbage."  When  Socrates  swore 
"by  the  dog"  and  "by  the  plane-tree,"  he  was  not  showing  con- 
tempt for  the  national  religion  (as  his  enemies  asserted) ;  on 
the  contrary,  he  showed  his  real  respect  for  the  gods. 

Such  protests  are  found  at  a  much  earlier  period,  as  early  as 
the  6th  century  B.C.  Xenophanes  (570-480?),  founder  of  the 
Eleatic  sect,  rejected  entirely  the  oath  as  a  means  of  proof,  because 
it  was  in  partnership  with  impiety.  Pythagoras  (582-500?) 
argued  against  the  practice  of  oaths,  even  in  the  most  weighty 
cases ;  and  his  followers  professed  that  they  would  rather  lose 
a  lawsuit  than  gain  it  by  taking  an  oath.  "Swear  not  at  all  "  was 
the  motto  of  this  school.  And  the  principle  spread  to  others. 
Eschylus,  the  dramatist  (525-456),  in  the  trial  scene  of  Orestes, 
represented  the  tribunal  as  rejecting  proof  by  oath,  as  a  travesty 
of  justice,  too  often  insuring  the  triumph  of  injustice  ;  and  he  put 
these  words  into  the  mouth  of  one  of  his  characters :  "  The  oath 
does  not  warrant  the  man,  but  the  man  the  oath."  Choirilos 
and  Menander,  the  poets,  invented  or  repeated  the  proverb, 
"Swear  not,  for  a  good  cause  any  more  than  for  a  bad  one." 

And  so  Plato  was  not  a  pioneer,  but  only  a  timid  imitator,  when 
he  proposed  to  banish  from  his  Republic  the  whole  oath-procedure, 
and  to  reserve  the  oath  only  for  situations  involving  no  direct 
and  temporal  advantage.  In  Plato's  view,  the  oath-procedure 
was  something  too  fine  for  the  men  of  his  own  times.  He  regarded 
it  as  practicable  only  in  the  days  long  past,  in  a  primitive  com- 
munity, still  moulded  by  morality  and  religion.  Rhadamanthus, 
he  said,  had  been  convinced  that  the  power  of  doing  justice  must 
be  entrusted,  not  to  human  judges,  but  to  the  gods ;   whence  the 

^Aristotle,  "Rhetoric,"  I,  15;  lamhlichus,  "Life  of  Pythagoras,"  47, 
144,  1.50;  Sosiades,  in  Stohec,  "Florilege,"  III,  SO;  ^.schyliis,  "Eumem- 
des,"  426  and  fragm.  369 ;  Choirilos,  in  Slobee,  ib.  XLII,  414 ;  Menander, 
fragm.  441. 


636  PROCEDURE  [Part  IV. 

simplicity  and  promptness  of  his  decisions ;  for  he  merely  ten- 
dered an  oath  to  the  parties,  "and  so  it  is  all  settled  ciuickly  and 
rightly."  But  this  excellent  method  of  settling  disputes  pre- 
supposed necessarily  a  deep  and  universal  religious  belief. 

"And  to-day,"  continued  Plato,  "when  men  either  do  not  beUeve  that 
the  gods  exist  or  believe  that  the  gods  do  not  interfere  in  human  affairs, 
or,  most  of  all  and  worst  of  all,  believe  that  the  gods,  on  receiving  petty 
sacrifices  and  flatteries,  will  become  their  aecompUces  in  chicanery  and 
will  save  them  from  punishment,  —  no,  for  the  men  of  to-day  the  method 
of  Rhadamanthus  is  no  longer  suitatjle.  And  so,  since^ien's  beliefs 
about  the  gods  have  altered,  the  law  too  must  be  altered/-<To-day,  when 
a  suit  is  begun,  the  law,  if  intelligently  framed,  shoujd^ifot  J?'equire  an  oath 
from  either  party.  It  should  merely  require  the  accTfser  to  put  the  points 
of  his  charge  in  writing  and  the  defendant  to  do  likewise,  without  allowing 
either  of  them,  on  filing  the  documents,  to  make  oath.  And  indeed,  when 
we  think  of  the  multitude  of  lawsuits  in  our  State,  we  cannot  for  a  moment 
doubt  that  perhaps  a  half  of  our  citizens  are  perjurers,  who  nevertheless 
do  not  hesitate  to  sit  at  table  with  the  rest  nor  to  associate  with  them  in 
public  assembly  and  in  private  homes."  i 

But  the  philosophers'  utterances  had  little  effect.  Without 
the  help  of  the  law  they  could  do  nothing ;  and  the  law  gave 
no  help.  Some  writers  have  supposed  that  there  was  a  criminal 
action  for  perjury  ('ypa(pri  eTrtopKia';),  with  infamy  as  a  penalty. 
But  no  document  mentions  it,  either  at  Athens  or  elsewhere. 
There  is  no  question,  to  be  sure,  that  discovered  perjury  was  visited 
with  disgrace.  .  .  .  But  the  only  punishment  of  the  perjurer  was 
that  which  the  gods  might  have  in  reserve. 

And  this  belief  in  the  gods'  enmity  for  the  false  swearer  never 
weakened  in  the  soul  of  the  Greeks.  Centuries  apart,  we  find  it 
expressed  with  equal  validity.  Two  instances  of  this  will  serve 
to  bring  us  to  an  end. 

Herodotus  tells  us  (not  without  a  suppressed  horror)  of  what 
happened  to  Glaucus  the  Spartan.  This  man  had  reached  the 
highest  position  in  his  town,  by  force  of  his  many  virtues  and 
particularly  his  uprightness,  when  Fate  subjected  him  to  a  bale- 
ful test.  A  rich  Milesian  sought  him  out  and  left  with  him  a  large 
sum  of  money  in  trust.  Years  passed.  One  fine  day  there  came 
to  Glaucus  the  sons  of  the  Milesian,  showed  their  tokens  from  him, 
and  asked  for  the  return  of  the  treasure.  Glaucus  could  not 
resist  the  temptation.  He  replied  that  he  remembered  nothing 
about  it ;  would  look  for  it ;  and  told  them  to  return  in  four 
months.  Meanwhile  he  sought  to  get  the  gods  on  his  side.  Be- 
taking himself  to  Delphi,  he  asked  the  oracle  if  he  might  appro- 
priate the  deposit  by  making  oath.     The  reply  of  the  priestess  of 

i"Laws,"  XII,  948. 


Chap.  XXXI.  §  4.]        THE    ORDEAL    AND    THE    OATH  637 

Apollo  was  like  a  thunderbolt :  "  Glaucus,  son  of  Epik ydes,  yes  ! 
For  the  time,  thou  may'st  gain  thy  suit  and  secure  the  treasure, 
by  taking  the  oath.  Take  it,  then !  Death  indeed  awaits  some 
day  all  mortals,  alike  those  who  keep  and  who  break  their  oaths. 
But  Horkos,  the  god  of  oaths,  has  a  nameless  son,  who,  having 
nor  hands  nor  feet,  will  none  the  less  pursue  relentlessly  until  he 
has  destroyed  thee  and  thy  whole  family,  root  and  branch.  But 
the  honest  man  will  leave  after  him  a  posterity  more  and  more 
prosperous."  The  wretched  Glaucus,  stunned  by  his  doom, 
begged  for  mercy.  But  the  implacable  priestess  replied  that  to 
solicit  the  god  to  assist  his  crime  was  as  great  a  fault  as  the  crime 
itself.  In  vain  was  it  for  Glaucus  to  send  for  the  jMilesians  and 
restore  the  money.  In  due  time  there  remained  not  a  scion  of 
the  house  of  Glaucus,  not  the  least  trace  of  his  place  among  men ; 
root  and  branch,  his  race  had  disappeared.  The  god  was 
avenged.^ 

With  this  story  of  Herodotus  may  be  compared  the  evidence  of 
an  inscription  which  was  found  in  a  temple  at  Delos.  Five  cen- 
turies had  passed  since  Glaucus'  day,  yet  the  beliefs  as  to  the  pun- 
ishment of  a  faithless  trustee  had  not  altered.  The  inscription 
reveals  to  us  a  humble  slave,  Theogenes  by  name,  who  had 
entrusted  to  a  certain  woman  the  money  saved  by  him  for  the 
purchase  of  his  freedom.  The  faithless  trustee  kept  it  all,  and 
swore  that  she  had  received  nothing.  For  the  unfortunate  victim 
of  her  wickedness  there  was  no  human  recourse,  —  no  resort  but 
to  divine  justice  ;  and  he  carved  on  a  stone  this  accusation,  which 
he  committed  to  the  care  of  the  gods :  "  Theogenes,  with  uplifted 
hands,  implores  the  aid  of  the  Sun  and  the  Maiden  Goddess  against 

.     She  had  made  oath  not  to  wrong  or  deceive  me  about  my 

treasure  which  she  received  to  keep  in  trust  for  me,  nor  to  deprive 
me  of  it.  And  I,  confiding  in  the  ]\Iaiden  Goddess,  believed  in 
that  oath,  nor  did  I  do  her  any  wrong.  But  she,  after  receiving 
in  trust  the  money  destined  to  purchase  my  freedom,  now  has 
despoiled  me  of  it.  ^lay  she  not  escape  the  power  of  the  goddess ! 
I  ask  and  pray  all  the  votaries  of  this  temple  to  declare  against 
her  the  curses  of  religion."  " 

And  so,  throughout  the  whole  epoch,  the  gods  who  are  invoked 
in  false  oaths  see  to  it  that  vengeance  follows  the  insult  to  their 
name  and  the  wrong  done  to  the  immutable  order  of  things. 

1  Herodotus,  VI,  86. 

2  "Bulletin  de  correspondanee  hellenique,"  VI,  1882,  p.  500,  No.  24. 


1/ 


638  PROCEDURE  [Part  IV. 

Section  5 

ANCIENT  FORMALISM  1 

I.    The  Stages  of  Internal  Evolution  of  the  Law 

1.  .  .  .  The  legal  activities  of  every  civilized  people  show  a 
movement  through  three  stages  of  development.  One  might 
denominate  them  as  the  divinatory,  formalistic,  and  intellectual 
stages,  in  the  sense  about  to  be  explained.  In  order  to  operate 
effectively  and  to  accomplish  their  mission,  all  three  stages  must 
be  supported  by  the  belief  that  the  law  is  of  divine  origin  and  of  a 
higher  power,  realized  in  a  worldly  existence ;  and  that  it  is  not  a 
human  product  to  be  mastered  by  the  will.  In  purest  form,  this 
belief  is  found  in  the  earliest  childhood  of  a  race ;  for,  the  more  that 
reason  enters  into  the  law,  the  less  pronounced  this  belief  becomes. 
It  cannot,  however,  disappear  entirely ;  except  that  the  law  itself 
should  fall  into  a  decrepit  triflmg  with  dead  ideas. 

A  people  and  a  productive  law  first  come  into  being  with  an 
emergence  from  the  condition  which  may  be  called  the  patriarchate. 
By  no  means,  however,  must  it  be  thought  that  the  purely  patri- 
archal condition  of  society  is  one  wholly  devoid  of  legal  ideas. 
The  statement  is  made,  constantly,  that  so  long  as  the  patriarch, 
the  head  of  the  family,  determines  everything  within  the  family, 
and  that  his  will  is  supreme,  there  is  no  law,  and  only  might.  It 
is  said,  also,  that  the  members  of  the  house  are  subject  to  the 
house-father  but  not  by  virtue  of  legal  rule;  that  the  house- 
father is  in  no  way  obligated  to  his  dependents,  or  bound  to  them 
by  legal  compulsion ;  that  when  he  decides  a  quarrel  in  the  house- 
hold he  does  not  utter  the  sentence  of  law,  but  acts  according  to 
convenience  in  the  plenitude  of  his  power,  granting  to  one  what 
under  the  same  circumstances  he  denies  to  another ;  and  that 
while  the  house-father  embodies  within  himself  all  law,  he  also 
displaces  all  law.  True,  but  it  is  still  the  idea  of  law  which  main- 
tains order  in  the  extensive  domestic  concerns  of  the  patriarch, 
and  which  restrains  the  servants  and  bondmen  from  asserting  their 
superior  strength  and  rising  up  in  rebellion.  Nevertheless,  the 
legal  idea  here  is  still  restricted ;  it  manifests  itself  only  in  a  passive 
relation,  and  is  not  yet  active  and  productive.  It  first  becomes 
active  in  the  tribe,  from  that  moment  when  the  relations  of  the 

1  [By  Dr.  Andreas  Hetjsler,  translated  by  Albert  Kocourek  from  "In- 
stitutionen  des  deutsehen  Privatrechts"  (Systpmatisehes  Handbuch  der 
deutschen  Rechtswissenschaft,  herausgegeben  von  Dr.  Karl  Binding), 
Erster  Band,  Leipzig,  Duncker  &  Humblot,  1885.] 


Chap.  XXXI,  §  5.]  ANCIENT   FORMALISM  639 

tribal  associates  among  themselves  are  no  longer  subject  to  the 
arbitrary  will  of  an  over-lord,  but  are  regulated  in  a  definite  way  by 
an  arrangement  established  by  the  will  of  law  and  for  the  purpose 
of  its  realization ;  even  though  this  arrangement  involves  also  the 
harsh  despotism  of  a  chieftain. 

During  this  early  period,  a  people  enters  a  healthy  state  of  things 
in  which  arbitrary  despotism  does  not  repress  all  sense  of  legality 
through  a  solemn  dread  of  law,  but  allows  it  free  scope  to  grow  and 
thrive,  that  is  to  say,  to  reveal  itself  in  the  consciousness  of  the 
people.  The  people  is  the  judge,  but  it  does  not  legislate ;  and, 
as  judge,  it  does  not  know  that  its  mission  is  not  only  to  declare  the 
law,  but  rather  to  aw^aken  among  litigants  a  consciousness  of  law, 
which  itself  approves  or  condemns.  As  the  apostle,  Paul,  says 
(Romans,  ii,  14,  15),  "for  when  the  gentiles,  which  have  not  the 
law,  do  by  nature  the  things  contained  in  the  law,  these,  having 
not  the  law,  are  a  law  unto  themselves.  \Miich  show  the  work  of 
the  law  written  in  their  hearts,  their  conscience  also  bearing  wit- 
ness, and  their  thoughts  the  meanwhile  accusing  or  else  excusing 
one  another."  The  law  exists,  but  it  is  brought  into  consciousness 
by  the  fact  of  strife,  wherein  the  defeated  party  goes  awa}"  feeling 
his  own  self-condemnation.  This  is  the  way  the  Cadi  of  an  Orien- 
tal nomadic  tribe  proceeds,  whose  administration  of  justice,  on 
superficial  view,  appears  to  exliaust  its  jest,  in  that  he  sets  a  trap 
by  which  the  guilty  party  ensnares  himself,  and  by  which  he  shows 
that  he  is  more  acute  than  the  culprit  who  has  been  circumvented. 
Deeper  comprehension  of  these  anecdotes,  however,  compels  the 
belief,  that  the  judge  desires  to  avoid  giving  a  decision  as  the 
product  of  his  own  reasoning,  but  rather  seeks  to  have  the  law 
express  and  realize  itself  through  its  own  form  and  irresistible 
influence  on  the  parties  themselves ;  he  merely  opens  the  way 
whereby  the  law  may  manifest  itself  to  the  consciousness  of  the 
litigants  —  a  species  of  divine  judgment  of  the  greatest  purity, 
the  most  ideal  instance  of  which  is  the  judgment  of  Solomon. 
All  that  the  judge  in  such  cases  has  to  do  with  the  matter  is  to 
discover  the  ways  and  means  by  which  the  law,  foreshadowed  to 
him  and  recognized  by  divination,  may  be  declared ;  and  he  sub- 
ordinates his  own  augury  to  a  method  of  confirmation  through  an 
aroused  sense  of  legality  in  the  minds  of  the  parties.  In  this 
sense,  we  speak  here  of  the  divinatory  attitude  of  the  law. 

2.  The  next  phase  of  evolution  is  legal  formalism.  The  human 
mind  strives  to  attain  definite  knowledge  of  the  idea  of  legality, 
it  seeks  forms  in  which  the  law  manifests  itself  and  declares  its 


640  PROCEDURE  [Part  IV. 

existence ;  it  does  not  any  longer  rely  on  divination  as  a  test  of 
conscience,  but  attempts  to  make  legality  obvious  by  an  external 
appearance.  In  its  earliest  manifestation,  it  has  an  inflexible 
quality,  but  the  very  fact  of  its  unbending  rigidity  gives  to  formal- 
ism the  appearance  of  a  divine  institution  which  is  not  subject  to 
the  manipulation  of  human  will.  This  is  the  age  when  the  law 
appears  as  a  constituent  part  of  religion ;  the  priesthood  unites 
I  the  application  of  law^  and  judicial  judgments  with  the  forms  of 
' —  divine  worship.  The  law  precedes  formalism  in  the  same  way  that 
It  preceded  divination.  The  task  of  both  is  to  permit  it  to  come  to 
consciousness  and  be  realized.  In  the  words  of  Pomponius  (Dig., 
de  orlg.  juris,  2,  1,  2,  6),  "omnium  tamen  legum  et  interpretandi 
scientia  et  actiones  apud  collegium  pontificum  erant."  That  also 
among  the  Germans  the  law  was  sustained  in  its  earliest  form  by  a 
priesthood  is  less  clearly  shown  by  Tacitus  than  by  isolated  tokens 
elsewhere. 

The  rigid  form  in  which  the  law  is  clothed  protects  it  against 
arbitrary  manipulation ;  and  the  formalism  which  surrounds  the 
law  is  like  a  sheltering  wall,  in  an  age  when  the  intellectual  power 
of  the  people  has  not  yet  sufficiently  developed  to  permit  It  to 
understand  the  internal  value  of  the  law.  Objective  things  are 
comprehensible,  but  the  abstract  is  not  intelligible.  The  law  is 
unified  with  precisely  circumscribed  sensible  phenomena,  and  is 
therefore  protected  from  arbitrary  perversion  and  demoralization. 
Fixed  legal  concepts  are  first  expressed  in  formalism,  and  thej^  are 
progressively  understood  and  developed,  in  the  abstract,  as  they 
separate  from  their  original  forms. 

3.  The  course  just  mentioned  characterizes  the  third  phase  of 
legal  development  in  which  an  Intellectual  domination  of  the  ab- 
stract materials  of  the  law  is  brought  to  function.  This  Is  the 
period  of  true  jurisprudence  whether  as  manifested  in  the  activity 
of  courts  or  by  juristic  efforts.  But  this  activity  is  limited  by  a 
constantly  regenerating  perception  of  legality  implanted  in  the 
people  and  in  the  national  spirit.  Of  itself,  it  cannot  generate 
law,  and  every  activity  in  legislation  or  legal  science  which  dis- 
regards this  limitation  fails  to  produce  a  true  legal  development, 
but  results  in  legal  aberration.  In  such  case,  it  either  remains 
impotent  by  the  side  of  the  true  idea  of  law,  when  the  legal  con- 
sciousness of  the  people  is  still  strong  enough  to  maintain  its  legal 
concepts ;  or  It  breaks  down  the  integrity  and  soundness  of  legal 
life,  if  the  vital  force  of  the  spirit  of  legality  among  the  people 
is  unable  to  resist  the  assault. 


Chap.  XXXI,  §  5.]  AXCIENT    FORMALISM  •  641 

The  transition  from  one  stage  of  legal  development  to  another 
is  not  sudden  and  abrupt.  For  this  reason,  the  ordeal  in  its  his- 
torically transmitted  form,  as  well  as  the  institution  of  the  oath, 
which  in  their  deepest  meaning  and  nature  belong  to  the  first 
stage,  are  suited  to  the  second  phase  of  development,  legal  formal- 
ism. The  extent  to  whi^h  legal  formalism  is  still  a  part  of  the 
stage  of  intellectual  development  of  law  needs  no  mention. 
Nevertheless,  the  transition  time  is  always  a  critical  moment. 
It  may  well  be  said,  that  Germanic  law  ran  aground  in  its  evolu- 
tion from  legal  formalism  to  an  intellectual  conception  of  law  ;  and 
that  on  this  account  the  reception  of  Roman  law  to  so  great  an 
extent  became  possible.  Rigid  formalism  ruled  Germanic  law 
far  into  the  Middle  Ages ;  but  since  the  capacity  for  abstract 
juristic  construction  had  not  yet  evolved,  when  form  no  longer 
sufficed,  it  resulted  that  formalism  either  was  entirely  abandoned 
before  there  was  a  workable  substitute  therefor,  or  it  became  de- 
graded to  the  point  of  caricature.  Both  consequences  led  to 
insecurity  in  the  legal  situation,  whereupon  Roman  law  presented 
itself  as  a  deliverance. 

II.   Scope  of  Legal  Formalism 

In  accordance  with  the  foregoing  explanation,  I  shall  discuss  the 
term  legal  formalism  as  that  phase  of  legal  development  where 
objective  perception  is  the  sole  or  preponderant  generative  force  of 
the  law,  and  where  internal  processes  of  a  spiritual  nature  such  as 
mental  dispositions,  will,  reason,  etc.,  are  either  excluded  or  are 
subordinate.  This  wide  sense  is  not  the  customary  usage.  Legal 
formalism  is  rather  taken  to  mean  the  principle  according  to 
which  acts  and  transactions  become  valid  as  legal  acts  or  legal 
transactions  —  a  prescribed  legal  form  of  words,  or  acts  foreign  to 
the  usages  of  ordinary  life.  This  external  formalism  is  only  half  of 
what  is  here  under  consideration ;  the  other  half,  we  may  say,  is 
internal  formalism  which  has  the  function  of  measuring,  according 
to  a  pattern  established  by  the  law,  the  material  operation,  the 
internal  processes  of  legal  life.  We  thus  speak  of  a  formal  and 
material  theory  of  proof,  when  in  connection  with  formal  proof  the 
rule  is  established  that  a  single  witness  is  not  sufficient  for  com- 
plete proof,  but  that  two  competent  witnesses  are  necessary. 
Wherein  is  the  formalism  ?  The  rule  has  nothing  to  do  with  form 
in  the  narrow  sense.  The  formalism  lies  in  this,  that  based  on 
many  hundreds  of  years  of  experience  with  the  unreliability  of 


642  PROCEDURE  [Part  IV. 

witnesses  an  average  rule  is  made  which  deprives  the  judge  of  a  free 
hand,  which  easily  becomes  arbitrary,  in  the  valuation  of  testi- 
mony, and  prevents,  by  an  external  standard,  the  giving  of  an 
often  false  credit  to  the  veracity  and  character  of  men.  We  may 
therefore  speak  of  legal  formalism  as  indicating  that  plan  of  the 
law  which  excludes  consideration  of  internal  character,  motives, 
processes  of  the  will,  and  the  like,  and  which  is  based  on  the  ex- 
ternal phenomena  of  legal  regulation.  One  of  the  leading  aspects 
of  this  formalism  is  the  subordination  of  all  particulars  to  a  general 
rule,  the  establishment  of  an  iron  roadway  upon  which  everything 
which  concerns  the  law  must  move,  and  across  which,  or  alongside  of 
which,  there  is  no  other  path.  The  individuality  of  the  particular 
case  must  give  way  to  an  average ;  and  a  substantial  valuation  of 
the  details  of  a  special  instance,  especially  personal  qualities,  in- 
ternal processes  of  the  will,  and  the  like,  is  excluded ;  and  the 
emphasis  is  placed  upon  what  is  objectively  perceptible,  upon  the 
external  phenomenon,  and  therefore  upon  a  formal  foundation. 
A  contract  does  not  bind  a  twenty-year-old  person,  because  he  is 
a  minor.  That,  in  spite  of  this  he  may  be  an  astute  business 
man,  does  not  come  into  consideration.     This  is  formal  law. 

Law  cannot  be  thought  of  as  entirely  divested  of  such  formalism ; 
all  time  limitations  are  formal  law,  and  are  indispensable  in  any 
system  of  law.  Germanic  law  began  with  pronounced  internal 
and  external  formalism,  and  this  quality  still  held  the  upper  hand, 
even  in  the  classical  period  of  the  Middle  Ages,  although  at  that 
time  it  was  already  on  the  defensive  against  more  liberal  views. 
This  situation  was  not  peculiar  to  Germanic  law.  No  early  law 
could  make  shift  without  this  characteristic ;  not  so  much  because 
juristic  technic  was  too  little  developed,  as  because  it  was  sought 
to  avoid  the  necessary  peril  of  arbitrariness  and  the  demoralization 
of  all  fixed  legal  values  resulting  from  an  individualization  of 
cases.  In  the  words  of  Jhering,  "form  is  the  sworn  enemy  of  un- 
limited discretion,  and  the  twin  sister  of  freedom"  ;  not,  indeed,  so 
much  in  the  sense  intended  by  Jhering,  that  it  provides  the 
counterbalance  against  the  temptation  to  lead  freedom  to  the 
limits  of  license,  as  that  it  establishes  an  unchanging  and  con- 
trollable standard  by  which  the  degree  and  force  of  the  law  may 
be  accurately  measured;  and,  especially,  in  that  it  deprives  the 
judge,  also,  of  discretionary  power,  Wlien  one  stops  to  look  more 
closely  into  modem  legislation  where  the  meaning  of  entire  chap- 
ters is  left  to  a  free  judicial  discretion,  one  can  hardly  resist  the 
feeling  that  we  are  no  longer  ruled  by  fixed  law,  but  are  subject 


Chap.  XXXI,  §  5.]  ANCIENT   FORMALISM  643 

to  the  will  of  the  judges ;  and  one  might  almost  wish  to  see  a 
system  of  formal  law.  There  is  no  doubt,  that  our  forefathers 
would  not  submit  to  a  kind  of  law  which  rested  on  the  will  of  the 
judge.  Tliey  desired  to  be  able,  themselves,  to  measure  accu- 
rately their  expectations  before  going  into  court ;  they  desired  to 
know  all  the  factors  out  of  which  judicial  decision  was  to  be  con- 
structed, in  order  that  a  trial  might  not  be,  as  to-day,  a  lottery 
where  one  has  an  equal  chance  to  win  or  lose. 

Agreeably  to  this  requirement,  the  most  cursory  glance  at  the 
Folk-laws  shows,  from  the  point  of  view  of  modern  legislation, 
a  striking,  and  likewise  avoidable  characteristic  —  the  extraordi- 
nary minuteness  and  detail  of  crimes  and  their  amercements. 
In  our  modern  criminal  codes  a  few  paragraphs  dispose  of  cor- 
poral injuries ;  still  briefer  is  the  treatment  of  property  damage. 
A  pair  of  large  rubrics  is  quickly  done  away  with,  and  the  judge 
may  impose  a  sentence  of  one  day  in  jail  or  ten  years  in  a  peniten- 
tiary, at  discretion.  We  may  compare  with  this  the  long  catalogue 
of  crimes  and  penalties  in  the  Folk-laws.  The  German  who  had  a 
splinter  of  bone  knocked  out  of  his  cranium  wanted  to  know  the 
result  before  he  went  into  a  law-suit,  and  the  Folk-law  told  him 
exactly  what  he  would  get,  if  the  splinter  made  a  sound  thrown 
against  a  shield  at  a  distance  of  twelve  feet.  There  was  no  room 
here  for  judicial  aberration  or  discretion.  The  degree  of  liability 
also  was  much  more  simple  and  external  than  in  Roman  law  and  in 
modern  law  with  its  modifications  of  culpa. 

A  law  of  procedure  set  in  motion  by  the  parties  themselves,  and 
maintained  by  formalism  of  procedural  steps  must,  if  possible, 
substitute  for  the  exclusion  of  judicial  discretion  a  system  of 
criminal  law  rich  in  the  detail  of  delicts,  and  with  the  greatest 
possible  external  criteria  of  Hability.  Ancient  Germanic  procedure, 
in  a  manner  entirely  foreign  to  the  practice  of  the  present  day,  was 
dominated  by  the  parties.  When  a  man  submitted  his  rights  to  the 
verdict  of  his  fellows,  he  wanted  to  know  precisely  how  this  verdict 
was  to  be  obtained,  and  what  share  he  was  to  have  in  the  construc- 
tion of  the  foundations  of  the  decision.  Just  as  when  he  took  up 
the  feud,  where  he  considered  and  employed  every  means  by  which 
he  could  wage  his  fight,  so  also  in  the  battle  of  law,  he  desired  to 
struggle  on  his  own  account ;  not,  of  course,  by  independent  meas- 
ures, but  as  prescribed  by  the  law ;  but  he  wanted  to  know  all  the 
conditions  of  the  struggle,  and  he  would  not  be  deprived  of  meas- 
ures proper  for  him,  or  permit  his  antagonist  to  have  any  others. 
He  wanted  to  fight  his  own  legal  battles  —  should  it  not  rather  be 


644  PROCEDURE  [Part  IV. 

said  that  he  must?  Is  not  this  personal  representation  in  pro- 
cedure rather  a  heavy  duty  and  burden  than  a  right?  It  is  not 
here  in  question  that  one  conditions  the  other;  that  right  and 
duty  are  coordinate.  One  must  ahvays  be  the  starting-point,  the 
principal  and  Hmiting  factor,  and  the  other  the  accessory  and 
limited  element.  We  moderns,  without  doubt,  would  regard  the 
duty  as  the  chief  thing,  and  the  right  as  only  a  badly  disguised 
adulterant  which  we  would  gladly  renounce  if  the  duty  were 
only  done  away  with.  But  the  ancient  German  thought  other- 
wise ;  for  him  the  right  was  the  first  consideration.  Whoever 
"nihil  neque  publico  neque  privatfe  rei  nisi  armatus  agit,"  who- 
ever is  prepared  each  day  and  each  hour  to  draw  the  sword,  and 
to  give  his  life  for  revenge  of  injuries,  —  such  a  man  is  possessed 
by  an  intensity  of  spirit,  which  would  lead  him  to  the  greatest 
exertion  of  his  mental  forces  in  a  struggle  before  a  court.  For  him 
a  trial  is  not  a  thing  to  be  delegated  to  an  attorney,  but  is  a  matter 
where  success  in  the  assertion  of  rights  secures  the  honor  and 
esteem  of  his  fellows,  and  where  defeat  would  bring  shame  and 
disdain.  Therefore  he  desired  to  understand  as  thoroughly  the 
weapons  of  procedure  as  the  method  of  the  sword. 

The  formalism  of  Germanic  law,  therefore,  fully  emphasized 
party  participation,  and  confined  it  according  to  definite  models. 
The  summons  was  sent  by  the  plaintiff  to  the  defendant.  The 
various  steps  of  procedure  and  even  the  decision  itself  were  pro- 
voked in  a  formal  manner  by  a  ritual  of  question  and  answer  of 
the  parties.  The  decision  was  in  the  highest  degree  a  formal 
verdict  upon  the  weight  of  the  evidence.  The  oath  and  if  need  be 
the  most  formal  method  which  could  be  conceived,  the  ordeal,  were 
the  sources  of  proof.  The  hostility  of  the  German  to  the  innova- 
tions introduced  by  a  s^^stem  of  royal  justice,  and  also  to  those 
attempted  in  Folk  courts,  may  be  comprehended ;  since  he  would 
not  tolerate  the  method  of  inquisitorial  proof,  and  preferred  to 
absent  himself  from  the  court,  and  suffer  the  consequences  of 
contumacy,  rather  than  submit  voluntarily  to  a  procedure  which 
permitted  free  scope  to  the  judge  in  a  valuation  of  the  evidence. 
It  may  also  be  understood  how  the  ancient  German  fought  against 
a  method  of  proof  by  documents ;  since  that  he  could  neither  read 
nor  write,  he  saw  here  a  factor,  opposed  to  him,  upon  which  he 
could  not  calculate. 

Our  special  task  is  to  deal  with  the  formalism  of  private  law. 
For  this  purpose,  we  separate  the  two  divisions  which  above  were 
denominated    as    internal    and    external    formalism;     but   inas- 


Chap.  XXXI,  §  5.]  AXCIEMT    FORMALISM  645 

much  as  these  terms  are  not  suitable  for  technical  purposes,  we 
may  substitute  therefor  the  terms  "legal  forms"  and  "legal 
plastics."  ... 

III.    Legal  Forms 

a.   Limitations   of   Time 

All  legal  limitations  of  time  have  a  profound  and  indispensable 
connection  with  legal  formalism.  That  a  person  attains  his 
majority  with  his  twenty-first  year  at  the  midnight  hour,  and  that 
the  validity  of  a  juristic  act  depends  on  whether  it  was  done  one 
minute  before  or  after  the  hour ;  and  that  a  claim  may  be  asserted 
up  to  a  definite  day,  and  after  that  day  may  not  be  urged  —  this  is 
formal  law.  No  legal  system,  not  even  one  the  farthest  removed  in 
abstraction  from  external  'concerns,  can  avoid  this  legal  formalism. 
Limitations  fixing  the  time  of  majority,  actionability  of  claims, 
etc.,  cannot  ever  be  dispensed  with  in  the  law\  It  frequently 
happens,  though,  that  the  law  makes  it  possible  to  overcome  the 
rigidity  and  want  of  consideration  of  a  temporal  limitation,  where 
the  individuality  of  the  circumstances  is  such  that  it  appears 
desirable.  Thus  a  minor  may,  if  he  is  Capable  of  diligent  manage- 
ment of  his  own  proprietary  affairs,  be  vested  with  the  capacity  of 
a  person  of  full  age.  But  curiously,  so  strong  is  the  inclination  to 
formal  law,  that  a  new  form  is  easily  imposed,  in  that  while  one 
form  is  put  aside,  the  concession  in  favor  of  venia  setatis  is  itself 
made  dependent  on  a  new  age  limitation.^  Such  is  the  difficulty 
of  the  law  in  ridding  itself  of  formalism.  .  .  . 

b.    The  Value  of  Word  and  Act  as  against  the  Will 

Strictly  formal  law  recognizes  no  opposition  between  will  and 
word,  and  no  possibility  of  their  being  inconsistent.  For  the  will 
can  only  be  known  by  the  word  which  has  given  it  expression. 
Therefore,  the  word  is  the  measure  of  the  legal  content  of  intention. 
A  man  is  not  held  liable  beyond  the  scope  of  his  word,  but,  however, 
he  is  held  remorselessly  to  it. 

This  is  completely  in  accord  with  the  ideas  of  Germanic  law, 
where  the  word  is  plastic  law  —  neither  more,  nor  less,  than  what  is 

1  [Thus  B.  G.  B.  —  "a  person  is  incapable  of  disposing  who  has  not 
completed  his  seventh  year  of  age"  (Sec.  104) ;  "a  minor  who  has  com- 
pleted his  seventh  year  of  age  is  limited  in  disposing  capacity,"  etc. 
(See.  106)  ;  "  a  minor  requires  for  a  declaration  of  intention  whereby  he 
does  not  merely  acquire  a  legal  advantage,  the  approval  of  his  statutory 
agent"  (Sec.  107).  —  Trans,  of  Chung  Hui  Wang.] 


646  PROCEDURE  [Part  IV. 

uttered  —  absolves  or  binds.  This  explains  the  minute  exactness 
with  which  obligations  are  paraphrased,  especially  in  relation  to 
their  transfer  to  the  heirs,  whether  of  the  debtor  or  creditor. 
How  painfully  tiresome  it  seems  to  read  in  a  code  of  the  tenth 
century  :  ^  "  quod  si  Johannes  vel  eius  filiis  et  eredes  omnia  mihi 
vel  ad  meis  eredibus  noluerit  adimplere,  tunc  hobligavit  se  et  suis 
filiis  et  eredes  ad  componendum  mihi  vel  ad  meis  eredibus,"  etc. 
But  the  creditor  found  it  necessary,  or  at  least  expedient,  to  secure 
to  his  heirs  the  right  of  asserting  the  claim  without  objection,  by 
express  agreement,  in  order  that  nothing  might  be  overlooked  in 
their  favor.  Even  the  Longobard  edict  (Aliistulph  16)  mentions 
as  a  particular  requisite  of  a  convention  effective  for  or  against  the 
heirs,  that  the  contracting  parties  "heredes  vel  successoribus  suis 
conlingaverint."  Since,  on  the  one  hand,  the  law  does  not  add 
anything  to  the  spoken  word,  on  the  other  hand,  it  takes  nothing 
away.  The  word  is  inflexible,  and  in  a  period  of  formal  law,  it  is 
unthinkable  that  a  definite  expression  of  intention  upon  which  a 
legal  transaction  is  based,  could  still  not  be  willed ;  and  that  the 
act  might  be  attacked  on  account  of  a  conflict  between  the  actual 
will  and  the  word  of  one  of  the  parties.  The  will  is  embodied  in  the 
word.  Upon  this  maxim  are  based  the  legal  proverbs  —  "  the 
man,  the  word,"  "the  word  stands,"  and  "words  make  trade,"  etc. 
A  necessary  consequence  is  that  error  in  contractual  relations 
hardly  comes  under  consideration.  "  Whoever  closes  his  eyes  opens 
his  purse";  "Whoever  buys  foolishly  must  pay  wisely";  and 
"Whoever  buys  damaged  goods,  let  him  keep  them."  Not 
error,  but  only  fraud  of  a  party,  especially  in  sale,  gives  freedom 
from  the  obligation  of  an  agreement.  The  sources  show  this 
clearly,  especially  with  reference  to  the  commercial  action  for 
defects  in  goods  sold.  Apparent  defects  do  not  relieve  the  buyer 
under  any  circumstances ;  latent  defects  relieve  him  only  when  the 
seller  cannot  affirm  under  oath  that  they  were  not  within  his 
knowledge.  In  the  course  of  trade  particularly  in  horses  and  cattle 
this  burden  on  the  buyer  was  found  to  be  too  heavy  in  the  case  of 
latent  defects ;  but  a  remedy  was  not  given  at  once  through  a  full 
and  free  individualization  of  cases.  Relief  came  by  a  formal 
process  of  thought  which  singled  out  certain  principal  defects, 
which  when  they  existed,  relieved  the  buyer  without  anything 
further,  from  the  obligations  of  the  contract  of  sale. 

4c  :):  :ic  H:  ^  N'  4i 

'  "Codex  diplomaticus  Canensis,"  ed.  Morcaldi,  etc.  II,  No.  213,  p.  4. 


Chap.  XXXI,  §  5.]  AXCIENT   FOKMALISM  647 

The  formal  character  of  the  law  is  still  more  decisively  shown  in 
its  disregard  of  the  factors  of  the  will  in  the  consequences  of  acts 
in  private  law.  Everything  that  a  man  does  was  judged  by  ex- 
ternal appearance  and  economic  effect  and  not  according  to  internal 
motive.  The  law  made  no  allowance  either  for  bona  fides  or  for 
guilt  when  it  sought  to  determine  the  legal  operation  of  an  act. 
^Vhoever  acted  so  as  to  disturb  a  legal  relation  was  made  fully 
accountable.  The  law  recognized  only  rights  and  wrongs,  and 
the  civil  consequences  of  that  which  appeared  as  a  wrong  were  laid 
against  the  person  acting. 

The  two  chief  applications  of  this  rigidity  were  that  a  person 
was  liable  for  damages  to  person  or  property  even  though  of  defec- 
tive mental  capacity  or  even  though  acting  in  self-defense,  and 
that  liability  in  case  of  things  deposited  or  owed  in  a  contractual 
relation,  was  absolute,  and  was  not  annulled  even  though  an  acci- 
dent intervened.  In  the  field  of  obligations  there  is  no  such  thing 
as  excusable  error;  every  error  is  regarded  as  "  negligentia."  In 
Longobard  law  the  terms  "  negligent  "  and  "  voluntary  "  appear 
to  furnish  the  same  contrast  and  to  be  identical  with  "  per 
errorem"  and  "asto  animo."  It  is  the  contrast  between  "  bona" 
and  "  mala  fides  " ;  "  ignoranter  "  or  "  per  errorem  "  means  lack 
of  knowledge  of  wrong ;  "  asto,"  on  the  contrary,  means  knowledge 
of  illegality.  But  even  the  lack  of  knowledge  of  a  wrong  does  not 
relieve  from  civil  liability  for  damages ;  and  the  opposite  has  signifi- 
cance only  in  criminal  law  where  ignorantia  cannot  be  penalized. 
In  the  same  sense  that  "ignoranter"  is  employed  in  the  Longo- 
bard edict,  the  Sachsenspiegel  uses  the  word  "unwetene"  which 
means  without  knowledge  of  wrong;  thus,  "whoever  cultivates 
*  unwetene'  the  land  of  another,  shall  still  lose  his  labor."  .  .  . 

c.   Damages 

]\Iodern  law  has  given  free  rein  to  the  judge  especially  in  the 
field  of  damages,  and  in  order  that  this  liberty  may  prosper  has 
made  use  of  the  civil  jury.  Ancient  Germanic  law  did  not  indi- 
vidualize in  this  department,  but  fixed  absolute  standards  which 
regulated  the  greatest  and  the  least  of  culpable  acts  which  resulted 
in  damage.  We  frequently  read  in  the  Folk-laws,  of  the  capital 
which  the  criminal  must  pay  in  addition  to  a  compositio.  This 
means  in  general  the  value  of  the  thing  stolen  or  damaged,  —  the 
compensation.  But,  how  is  this  ascertained?  Was  it  not  left  to 
the  judicial  judgment?     If  we  gather  from  Lex  Salica  G6  that  the 


648  PROCEDURE  [Part  IV. 

solidus  is  measured  by  cattle  and  grain,  then  we  may  retrace  our 
steps  and  conclude  that  every  object  had  its  fixed  price  which 
excluded  individual  valuation.  This  was  in  truth  an  average 
valuation  which  might  not  in  certain  cases,  cover  the  actual 
damage,  but  the  person  injured  received  in  addition  a  penalty 
which  abundantly  outweighed  any  difference.  ... 

IV.    Legal  Plastics 
a.   Modes  of  Legal   Thought 

It  is  characteristic  among  all  peoples  in  the  beginnings  of  the  law, 
that  the  law  and  legal  rules  should  be  thought  out  and  expressed 
plastically ;  that  is  to  say,  in  such  manner,  that  out  of  concrete, 
objective  forms  and  appearances,  an  original  image  is  created 
which  remains  graven  in  the  memory.  This  method  finds  its 
greatest  enemy  in  a  writing  down  of  the  law;  it  thrives  only  in 
naive  Folk-life  and  with  the  transfer  of  the  law  from  mouth  to 
mouth,  where  abstract  rules,  which  are  at  once  forgotten,  cannot  be 
employed.  Even  the  first  efforts  to  reduce  law  to  writing  are  far 
more  lacking  in  spirit,  and  more  directed  to  the  understanding, 
than  primitive  law  which  is  the  direct  expression  of  the  Folk-soul. 
We  would  have  no  notion  of  the  plastic  method  of  thought  peculiar 
to  ancient  Germanic  law  if  we  were  restricted  to  the  Folk-laws, 
the  law-books,  and  the  provincial  and  municipal  codes,  and  if  we 
did  not  have  in  the  precedents  of  the  peasantry  and  in  the  legal 
proverbs  one  of  the  most  valuable  treasures  of  ancient  law.  For 
the  Folk-laws  are  already  the  product  of  reflection.  As  the 
prologue  of  Lex  Salica  says,  the  causes  of  strife  were  considered 
by  men  skilled  in  the  law,  and  suitable  provision  was  made  for 
decisions.  The  Folk-laws  are  no  longer  the  pure,  unconscious 
product  of  customary  law ;  this  is  found  in  objective  form  only  in 
the  legal  rules  contained,  often  in  fragments,  in  the  sayings  of  the 
peasantry  [such  as  have  been  collected  by  Jacob  Grimm]. 

One  will  hardly  venture  to  be  content  to  explain  these  methods 
of  thought  and  expression  (which  are  objective  and  generally  sensi- 
ble and  rarely  cumbrous),  solely  as  the  product  of  a  naive  Folk-soul, 
and  to  base  them  exclusively  on  the  practical  consideration  that 
something  thought  of  in  a  vigorous  image  is  better  retained  by  the 
memory  than  an  abstract  principle.  Thus,  for  example,  that  the 
throw  of  a  hammer  to  fix  the  limits  of  a  farmstead,  or  that  a  spear 
laid  square  across  a  saddle  to  mark  the  width  of  road,  could  be  more 
easily  remembered,  than  a  plain  measure  in  numbers.     Just  such 


Chap.  XXXI,  §  5.]  ANCIENT   FORMALISM  649 

acts,  which  are  intended  to  take  the  place  of  a  plain  measuring  in 
paces  or  feet,  are  often  complicated  enough  to  confuse  the  memory. 
Such,  perhaps,  is  the  measure  for  finding  the  limits  in  which 
chickens  may  range  on  the  land  of  a  neighbor ;  where  the  peasant, 
standing  on  the  ridge  of  the  roof,  holding  his  ear  with  his  right 
hand,  threw  a  sickle  held  by  the  point  with  his  left  hand,  behind 
him,  under  the  right  arm.  Even  an  appeal  to  humor  and  poetry, 
here,  does  not  suffice.  Grimm  has  already  pointed  out  that  the 
throwing  of  a  hammer  has  a  religious  meaning,  the  consecration 
of  boundaries.  A  religious  connection  may  also  be  aflSrmed  with 
more  or  less  certainty  regarding  the  shooting  of  an  arrow,  and 
other  acts.  We  may  therefore  assume,  in  general,  a  deeper  ex- 
planation for  all  these  phenomena,  which  frequently  is  of  a  reli- 
gious character ;  since  the  forms  in  which  the  law  appears  were 
originally  religious  forms.  Law  was  a  parcel  of  religion,  and  its 
protection  was  given  over  to  religion  in  the  same  way  that  there  v/as 
committed  to  it  the  manifestations  of  God.  Apart  from  a  religious 
connection  it  was  still  necessary  to  distinguish  legal  acts  as  such 
from  other  acts  of  no  legal  significance,  and  to  express  their  im- 
portance by  an  external  force.  The  act  of  throwing  a  sickle, 
which,  for  us,  approaches  tomfoolery,  is,  in  its  transmitted  form, 
perhaps  an  already  ridiculous  distortion  of  what  was  originally  a 
very  solemn  performance,  which  not  only  expressed  the  legal 
significance  of  the  transaction,  but  also  protected  the  neighbor 
against  a  vexatious  and  improper  extension  of  a  power.  When 
legal  consequences  were  in  ciuestion,  the  manner  in  which  the  sickle 
was  to  be  thrown  was  not  a  matter  of  discretion.  .  .  . 


6.   Solemnities  and  Symbols 

The  plastics  of  ideas  and  expressions  and  the  plastics  of  legal 
acts  and  transactions  are  inseparably  connected.  Germanic  law 
in  its  external  appearance  is  uncommonly  plastic,  that  is ,  to  say 
clothed  in  forms  which  in  the  highest  degree  accurately  denote  the 
objective  sense  of  its  materials.  Every  species  of  formalism,  how- 
ever, is  not  plastic.  The  requirement  that  certain  contracts  shall 
be  in  writing  is  an  example  of  the  exception.  In  this  instance  the 
content  and  essence  of  the  contract  are  in  no  manner  externally 
represented  ;  on  the  other  hand,  the  form  is  the  same  for  the  most 
dissimilar  contracts.  The  greatest  monument  of  modern  formal- 
ism, the  bill  of  exchange,  and  especially  its  more  important  form. 


650  PROCEDUKE  [Part  IV. 

the  draft,  cloaks  in  its  external  appearance,  substantive  law; 
for  one  does  not  gather  from  reading  the  document  itself  that  the 
drawer  becomes  liable  to  the  payee  or  the  indorser.  One  must 
jfirst  know  the  law  to  understand  the  form.  The  form  indicates 
nothing ;  it  is  the  converse  of  plastics,  because  it  will  lead  everyone 
astray,  w^ho  without  understanding  the  nature  of  a  bill  signs  a  bill 
believing  from  the  form  that  he  is  giving  a  direction,  and  not  that 
he  is  subscribing  an  obligation. 

In  contrast  to  this  modern  formalism  which  in  its  legal  founda- 
tions is  an  independent  product  of  artificial  legal  development, 
we  may  turn  to  the  legal  formalism  of  early  law  which  is  character- 
ized by  an  objective  representation  of  its  processes  in  which 
solemnities  and  symbols  play  the  leading  part.  Solemnity 
potentializes  the  form  of  ordinary  life.  Instead  of  the  freely 
chosen  words  of  current  speech,  certain  prescribed  words,  or  entire 
formulas  must  be  uttered;  and  instead  of  an  inconspicuous  act, 
a  ceremonial  must  be  performed.  Symbols  come  into  being  when 
there  is  no  place  for  a  natural  form,  or  when  a  natural  form  is 
impossible.  An  emblematic  form,  therefore,  is  created  in  order 
to  bring  the  abstract  process  to  expression. 

The  origin  of  solemnities  and  symbols  has  often  been  ascribed 
to  an  innate,  unconscious  impulse  of  a  people  toward  imagery,  and 
it  has  been  supposed  that  primitive  Folk  customs  have  developed 
without  design  or  purpose ;  in  other  words,  that  they  have  not  been 
made,  but  that  they  have  grown.  It  would  be  unprofitable  to 
quarrel  with  this  view,  but  yet  the  opposite  notion  seems  to  me 
more  likely.  All  formalism  of  this  kind  is  created  by  deliberate 
reflection  by  the  priesthood  which  in  the  infancy  of  the  law  is  the 
guardian  of  the  law.  Only  that  which  is  bound  up  with  law  and 
religion  is  under  the  dominion  of  this  formalism.  There  solemnity 
prevails  while  here  symbolism  preponderates.  The  latter  especially 
(and  in  large  past  also  the  former)  is  never  naive,  the  result  of  a 
free  impulse  of  the  people,  but  is  always  reflected  and  artificially 
thought  out.  In  this  connection,  we  may  refer  to  the  rich  sym- 
bolism of  the  Mosaic  legislation  and  worship,  where  each  precious 
stone  in  the  robe  of  the  high-priest  and  each  part  of  the  priestly 
vestments  had  a  symbolical  meaning.  The  spirit  of  the  people 
does  not  generate  it ;  it  is  discovered  by  the  priestly  leadership ; 
but  yet  it  fits  in  accurately  with  the  feelings  of  the  people  in  order 
that  it  may  become  acceptable.  The  original  purpose  was  not 
directly  to  make  the  people  dependent  on  the  priesthood,  or  to 
secure  to  themselves  power  and  influence  through  the  possession  of 


Chap.  XXXI,  §  5.]  ANCIENT   FORMALISM  651 

strongly  fortified  secrets ;  although  in  later  times  formalism  may 
have  been  employed  with  this  end  in  view.  Rather,  formalism 
sprang  from  the  effort  to  make  law  and  religion  holy  to  the  people. 
Law  and  religion  were  permeated  with  ceremonial  acts  and  sym- 
bols ;  in  fact,  thej^  were  completely  embodied  in  solemnities  and 
symbols,  in  order  that  there  might  be  instilled  into  the  people  a 
holy  respect  and  honor  for  them ;  that  the  easily  susceptible  na- 
ture of  a  young  people  might  be  favorably  disposed  by  them ;  and 
that  they  might  be  made  receptive  to  the  law  at  a  time  when  the 
mind  did  not  grasp  its  meaning  and  was  unable  to  understand  its 
necessity.  Without  formalism,  the  law  would  have  been  a  hidden 
treasure  to  the  people.  Therefore  according  to  the  nature  of  the 
form  it  is  itself  the  law ;  and  the  form  is  employed  for  its  own  sake 
because  the  people  see  the  law  only  in  the  form. 

Inasmuch  as  we  cannot  carry  ourselves  back  to  this  stage  of 
mental  development,  the  unyielding  dominion  of  form  may  too 
easily  appear  as  an  insufferable  hindrance  to  a  free  expression  of 
will ;  but,  in  its  flourishing  time,  it  is  not,  however,  regarded  as 
such  in  any  sense.  For,  on  one  hand,  there  is  more  earnestness  in 
the  law  than  at  the  present  day,  and  legal  transactions  are  entered 
into  with  an  increased  spirit  comparable  to  the  devotional  ardor  of 
religious  worship ;  and,  on  the  other  hand,  the  feeling  of  security 
and  stability  of  law  guaranteed  by  formalism  which  requires  fore- 
sight, attention,  and  the  striving  for  certainty  is  too  strong  not  to 
make  the  exactions  of  formalism  acceptable  to  all  persons  who 
undertake  the  concerns  of  the  law.  One,  perhaps,  may  say,  that 
formalism  is  not  even  regarded  as  formalism ;  for  without  it  there 
is  no  law,  and  all  law  is  known  and  exerted  solely  through  formal- 
ism. The  strict  formalism  of  the  bill  of  exchange  does  not  op- 
press and  limit  us,  for  precisely  the  same  reason,  that  by  it  the  law 
of  bills  of  exchange  is  first  of  all  maintained. 

If  the  interrogation  is  put  whether  Germanic  law  required  for 
legal  transactions  the  use  of  definite  words  or  formulas,  one,  on 
first  impression,  would  be  inclined  to  answer  in  the  negative.  A 
verborum  obHgatio,  like  the  stipulatio  of  classical  Roman  law, 
never  as  much  as  existed ;  there  was  no  form  by  which  the  law 
prescribed  a  fixed  phrasing  for  the  creation  of  a  legal  relation. 
Therefore,  in  Germanic  law,  there  was  no  formal  contract  whereby 
any  agreement  could  be  clothed  in  words  formally  uttered,  whereby 
thenceforth  by  virtue  of  the  force  of  the  words  used,  and  without 
reference  to  the  content  of  the  agreement,  its  validity  was  estab- 
lished.    Still  it  may  be  accepted  that  in  the  finishing  of  a  legal 


Go2  PROCEDURE  [Part  IV. 

transaction,  the  content  could  be  expressed  by  the  parties  in  a 
definite  ceremonial  manner  by  a  solemn,  fixed  formula.  This  is 
shown  by  the  Cartularium  Langobardicum,  This  collection  sets  out 
the  formula  which  was  to  be  employed  on  the  occasion  of  com- 
pleting a  legal  transaction  concerning  the  execution  of  a  document. 


The  thing  which,  heretofore,  has  diverted  attention  from  this 
side  of  the  question  is  chiefly  the  circumstance  that  nearly  all 
juristic  acts,  at  any  rate  those  especially  characteristic  in  Ger- 
manic law,  to  which  the  leading  interest  has  attached,  are  sur- 
rounded by  a  great  luxuriance  of  solemn  and  symbolical  acts. 
The  importance  of  the  form  of  words  has  not  been  observed,  al- 
though it  is  to  be  admitted,  at  the  outset,  that  solemn  and  symboli- 
cal acts  naturally  are  also  connected  with  solemn  words. 

Solemnity  and  symbolism,  and  solemn  and  symbolical  acts,  are 
not  mutually  exclusive.  Frequently,  symbols  are  used  for  solemn 
precautions ;  in  fact,  symbolical  acts  are  generally  also  solemn, 
although  not  necessarily.  Thus,  the  shield,  symbol  of  judicial 
power,  and  its  suspension  on  the  tree  of  the  court,  preserves  the 
necessary  solemnity  of  the  tribunal.  Or  when  the  vendee  of  land 
is  led  around  the  boundaries  of  the  land,  or  grasps  the  portals  of 
the  house,  or  when  the  vendor  hands  over  to  the  vendee  a  broken 
twig  or  a  clod  of  earth  —  all  these  acts  are  at  once  symbolical  and 
solemn. 

A  symbol  is  a  concretely  sensible  perception,  an  objective  realiza- 
tion of  an  idea  or  concept.  A  symbolical  act,  therefore,  is  one 
which  embodies  in  an  external  act  a  process  which  is  not  objec- 
tively perceptible.  The  twig  and  clod  of  earth  in  the  examples 
given  are  not  symbols,  because  they  do  not  externalize  any  idea, 
but  represent  the  land.  They  represent  property,  but  the  transfer 
of  a  twig  and  a  clod  of  earth  may  be  used  as  a  symbolical  act  in  that 
they  objectify  the  transfer  of  possession  (Gewere),  with  all  its 
legal  incidents,  to  the  new  owner.  This,  in  fact,  is  the  essence 
of  a  symbolical  a2t,  —  that  an  abstract  process  is  visualized ;  for 
example,  when  the  transfer  of  ownership  is  represented  by  handing 
over  a  glove  which  is  put  on  by  the  new  owner.  Feigned  acts, 
therefore,  are  not  to  be  regarded  as  symbolical  acts.  The  transfer 
of  an  arrha  is  not  symbolical  payment ;  a  hanging  in  effigy  is  not 
a  symbolical  execution.  The  reason  is,  that  payment  and  hanging 
are  not  abstract,  but  highly  concrete  and  perceptible  processes, 
the  ideas  of  which  are  incapable  of  being  symbolized.  ...     A 


Chap.  XXXI,  §  5.]  ANCIENT    FORMALISM  653 

seller  is  not  paid  with  an  arrha,  nor  is  a  criminal  executed  by  a 
hanging  in  efBgy ;  but  the  delivery  of  a  twig  is  sufficient  to  transfer 
possession.  Solemnities,  finally,  are  precautions  which  legal  acts 
alone  are  unable  to  represent,  and  which  are  designed  only  to 
provide  an  act  with  a  special  ceremonial  and  value,  with  the  result 
that  the  act  becomes  legally  valid  only  through  the  observance  of 
its  solemnity.  Examples  of  this  are  the  calling  in  of  solemn  wit- 
nesses, the  tweaking  of  the  ears  of  witnesses,  and  the  like.  As 
already  observed,  symbolical  acts  (and  likewise  colorable  acts) 
are  frequently  also  solemn,  as  the  act  of  investiture  by  delivery  of  a 
twig  and  a  clod  of  earth  before  witnesses  m  a  ceremonial  perform- 
ance. There  ceremonials  answer  the  purpose  of  the  dignity  of  the 
symbol,  but  are  not,  however,  indispensable. 

Solemnities  and  symbols  are  so  frequently  encountered  in  Ger- 
manic law,  that  a  detailed  examination  of  the  matter  must  be 
passed  over.  Grimm  has  done  the  most  to  collect  them.  I  draw 
attention  only  to  the  great  number  of  applications  where  the  calling 
upon  solemn  witnesses,  "testes  "  in  contrast  with  "  adstantes,"  was 
necessary.  Reference  may  be  made  only  to  the  two  titles  46  and 
50  of  Lex  Salica,  according  to  which  for  the  single  transaction  of 
Affatpmie  three  witnesses  are  three  times  required  in  three  different 
acts  to  set  it  in  motion,  and  the  transaction  is  completed  by  a  series 
of  purely  solemn  acts  with  witnesses.  That  these  witnesses  are 
also  proof  witnesses  does  not  change  the  solemn  character  of  the 
proceeding. 

Symbols,  however  much  they  may  differ,  always  objectify  the 
concept  of  dominion  and  power,  and  symbolical  acts  make  the 
admission  of  this  dominion  externally  perceptible.  Thus,  assist- 
ance, in  the  institution  of  commendation,  is  symbolized  by  the 
vassal  laying  his  folded  hands  into  the  open  palms  of  the  lord, 
indicating  submission  to  the  feudal  tie ;  in  Saxon  law  the  dipping 
and  snapping  of  a  finger  indicates  the  cession  of  every  claim  to  a 
parcel  of  land  conveyed  ("  digitis  incurvatis  abnegationem 
facere  ") ;  the  offer  of  a  twig  and  turf  signifies  the  induction  into 
possession  of  land ;  the  touching  of  an  altar-cloth  or  the  bell-rope 
declares  the  taking  possession  of  a  chapel ;  the  laying  down  of  the 
house-keys  or  a  mantle  upon  the  bier  or  grave  of  a  husband  ex- 
presses relinquishment  of  the  matrimonial  property  to  the  creditor 
of  the  late  husband ;  the  cutting  oflF  of  the  beard  and  hair  means 
surrender  to  a  servile  condition  ;  the  giving  up  of  a  hat  or  a  glove, 
a  transfer  of  ownership  ;  and  the  bestowal  of  a  staff,  sceptre,  spear, 
or  small  military  flag,  feudal  service. 


654  PROCEDURE  [Part  IV. 

The  flourishing-time  of  this  symbohsm  was  the  Prankish  period. 
In  this  age,  every  symbol  still  had  spirit  and  life,  and  this  was 
chiefly  made  evident  by  the  fact  that  it  was  not  a  benumbed  and 
dead  form,  but  had  a  living  connection  with  the  spoken  word. 
As  all  things  are  created  by  the  word  (John  i,  3)  so  also  the  form, 
the  symbol,  receives  its  vitality  through  the  word,  in  order  that, 
in  turn,  it  may  give  to  the  abstract  word  an  objective  meaning. 
Both  are  equally  essential  for  the  foundation  of  the  right,  and  both 
are  of  service  in  giving  stability  e.g.  to  the  legal  transaction  of 
manumission,  "ut  rata  haberi  posset  libertas,"  which  Paulus 
Diaconus  (I,  13)  designates  as  the  symbol  of  the  delivery  of  an 
arrow,  but  adds,  "  immurmurantes  nihilominus  ob  rei  firmitatem 
quaedam  patria  verba."  This  is  not  mere  ornamentation,  not 
even  in  the  transfer  of  lands  where  symbolical  acts  are  conspicuous 
by  their  number.  How  careful  the  Cartularium  Langobardicum  is 
to  remind  that  when  the  vendor  is  a  Frank  there  should  not  be  for- 
gotten the  knife,  staff,  clod,  twig,  and  glove ;  when  he  is  an  Aleman, 
the  hand  ligature;  while  when  he  is  a  Burgundian  or  Bavarian, 
the  knife  may  be  omitted.  In  the  period  of  the  law-books  this 
symbolism  had  already  become  a  ruin. 


Section  6 

ANCIENT   SEMITIC   PROCEDURE  i 

Babylonians  and  primitive  Semites  —  Tribal  custom  the  foundation  of 
law  —  Blood-revenge  —  Judicial  authorities  —  Institution  of  judges  in 
Israel  —  Centralisation  of  justice  —  Divine  decisions  —  Resort  to  a 
deity  —  Oaths  of  piu-gation  "before  God"  —  Semitic  ordeals  —  Pro- 
cedure in  Babylonia  —  Laws  relating  to  judges  and  witnesses. 

The  existence  of  a  lengthy  code,  which,  as  we  have  seen  in 
chap,  i,^  covered  a  great  variety  of  legal  topics,  is  sufficient  proof 
that  in  Hammurabi's  age  law  and  justice  had  reached  an  extremely 
advanced  stage  of  development.  It  presupposes  regularly  in- 
stituted courts  of  law  with  duly  qualified  judges,  and  it  requires 
us  to  conclude,  further,  that  this  stage  had  long  been  in  existence, 
and  that  the  Code  was  intended  to  fix  once  and  for  all  certain 
judicial  decisions  which,  if  not  new,  at  least  required  the  authority 
of  royal  approval  to  make  them  general. 

i'[By  Stanley  A.  Cook.  Reprinted  by  permission  from  "The  Laws  of 
Moses  and  the  Code  of  Hammurabi,"  Adam  and  Charles  Black,  London, 
1903.     See  list  of  abbreviations  at  the  end  of  this  section,  p.  667.] 

-  [Not  reprinted.] 


Chap.  XXXI,  §  6.]  AXCIEXT   SEMITIC    PROCEDURE  655 

The  Babylonian  Semites  and  the  Semites  of  the  desert  lived 
under  entirely  different  conditions,  and  whilst  the  latter,  particu- 
larly in  districts  removed  from  the  regular  trade-routes,  have  re- 
mained throughout  all  ages  practically  untouched  by  the  influence 
of  the  surrounding  seats  of  culture,  Babylonian  society  in  the 
time  of  Hammurabi  was  a  fusion  of  Semitic  and  pre-Semitic  stocks 
of  obscure  origin.^  ^Miat  Robertson  Smith  has  said  of  the  religious 
ideas  of  Babylonia  in  their  relation  to  those  of  the  primitive 
Semites "  may  be  applied  to  its  laws.  The  fusion  of  races  in 
Babylonia  leads  to  the  expectation  that  the  principles  of  law  and 
justice  were  an  artificial  combination  of  the  most  diverse  elements, 
and  it  is  therefore  obvious  that  our  inquiry  must  start  with  the 
less  complicated  types  from  the  other  regions  of  the  Semitic  world. 

Here  we  are  at  once  brought  face  to  face  with  the  fact  that 
among  primitive  Semitic  communities  there  is,  properly  speaking, 
no  law  and  no  law-givers.  But  it  would  be  a  mistake  to  infer  that 
there  was  lawlessness.^  Tribal  custom  —  and  with  it  is  involved 
religious  custom  —  is  the  strongest  of  laws.  A  thing  is  lawful 
because  it  has  always  been  considered  lawful;  things  that  are 
unlawful  are  things  that  are  not  wont  or  ought  not  to  be  done.^ 
Within  the  tribe  all  men  are  on  a  footing  of  equality,  and  under  a 
communistic  system  petty  offences  are  unreasonable.  Serious 
misdemeanour  is  punished  by  expulsion ;  the  offender  is  excluded 
from  the  protection  of  his  kinsmen,  and  the  penalty  is  sufBciently 
severe  to  prevent  its  being  a  common  occurrence.  The  man  who 
is  wronged  must  take  the  first  step  in  gaining  redress,  and  when  it 
happens  that  the  whole  tribe  is  aroused  by  the  perpetration  of 
any  exceptionally  serious  crime,  the  offence  is  fundamentally 
regarded  as  a  violation  of  the  tribe's  honour,  rather  than  as  a 
personal  grievance  on  the  part  of  the  family  of  the  sufferer.  Courts, 
as  in  Babylonia,  for  the  adequate  punishment  of  offences  and  legally 
ordained  punishments  are  not  yet  in  existence.  This  essential 
distinction  between  primitive  Semitic  and  Babylonian  procedure 
comes  out  most  clearly  in  the  case  of  blood-revenge. 

The  familiar  Semitic  conception  of  the  sacredness  of  blood  — 

^  That  the  so-called  Accadians  or  Sumerians  were  not  Semites  seems 
to  be  conclusivelj^  proved,  but  of  their  nationality  and  life  there  is  little 
certain  information.  Under  these  circumstances  it  is  scarcely  necessary 
to  attempt  to  discover  in  what  respects  the  Code  is  indebted  to  non- 
Semitic  legislation. 

2"Rel.  Sem."(2)  p    13  ^^ 

3  Cp.  Benzitiger  in  EBi.  "Law  and  Justice,"  §  I,  "Government,"  §  9. 

*  Gen.  XX,  9,  xxix,  26  (a  reference  to  local  custom) ;  cp.  Gen.  xxxiv, 
7  ;  2  Sam.  xiii,  12. 


656  PROCEDURE  [Part  IV. 

whether  human  or  animal  —  must  have  long  been  forgotten  among 
the  Babylonians,  whose  code  is  characterised  by  the  frequent 
application  of  the  death  penalty.  It  is  unnecessary  to  point  out 
in  detail  how  the  Semites  have  been  influenced  by  this  conception. 
The  inviolable  nature  of  the  blood-tie  which  makes  kinsmen 
brothers,  and  the  responsibility  attached  to  the  shedding  of  blood, 
lie  at  the  very  root  of  the  almost  ineradicable  system  of  blood- 
revenge.  If  a  man  has  killed  one  of  his  own  group,  he  has  com- 
mitted an  offence  for  which  he  cannot  expect  to  obtain  protection 
from  the  members  of  his  tribe.  He  may  be  solemnly  put  to  death, 
and  this  was  primarily  effected  without  the  spilling  of  blood,  or 
he  may  be  formally  expelled,  in  which  case  he  becomes  an  outlaw.^ 
In  any  case  the  community  must  be  purged  of  the  presence  of  the 
impious  member.  On  the  other  hand,  when  the  slayer  and  the 
slain  are  of  distinct  groups,  the  principle  of  the  sacredness  of 
blood  reacts  in  a  different  manner.  The  group  of  the  slain,  on  the 
one  side,  are  bound  in  point  of  honour  not  to  leave  their  kins- 
man's death  unavenged ;  the  slayer's  group,  on  the  other,  so  far 
from  being  under  an  obligation  to  surrender  the  guilty  one,  regard 
it  as  equally  a  point  of  honour  to  unite  to  protect  him.  There  is 
blood-feud  between  the  two  groups.  Any  member  of  the  aggrieved 
group  may  retaliate  upon  any  of  the  slayer's  group,  and  until 
satisfaction  is  obtained  this  state  of  feud  continues.  Naturally, 
under  the  circumstances,  there  may  be  indiscriminate  slaughter, 
and  the  blood-feud  is  prolonged  indefinitely.  So  deeply  rooted  is 
the  practice  that  blood-revenge  holds  good  among  the  wilder 
Bedouin  tribes  of  to-day.  Certain  modifications,  however,  were 
gradually  introduced,  with  the  object  of  preventing  the  fierce 
internecine  fights  and  the  insecurity  of  life  which  the  feud  entailed. 
Blood-wit  was  offered  and  accepted,  the  responsibility  for  murder 
was  confined  within  limits,  and  retaliation  restricted  to  the  guilty 
party  and  immediate  relations."  The  development  of  the  system 
in  Israel  will  require  separate  consideration  later,  where  we  shall 
find  that  as  late  as  the  seventh  century  the  murderer  is  solemnly 

'  Cp.  Gen.  iv,  12.  In  ancient  Arabia  the  formula  varied :  we  pro- 
nounced so-and-so  to  be  a  hall',  "God  ..put  away  tMs  man,"  or  "We  are 
clean  (innocent)  of  him"  CProcksch,  "tjber  die  Blutrache  bei  den  vor- 
islamischen  Arabern,"  p.  31  sq.).  For  the  principles  of  blood-revenge, 
see  Robertson  Smith,  "Kinship  and  Marriage,"(^)  pp.  25-27;  cp.  also 
W.  M.  Patton,  "Blood-revenge  in  Arabia  and  Israel,"  "American  Journal 
of  Theology,"  October  1901,  pp.  703-731. 

^  Jaussen  ("Revue  Biblique,"  1903,  p.  253)  mentions  the  story  of  a 
.modern  Bedouin  who,  to  protect  his  kin  from  blood-feud  and  to  confine 
a  quarrel  to  his  ad^'ersary  and  himself,  solemnly  repudiated  his  family. 
Henceforth  he  alone  became  responsible  for  what  followed. 


Chap.  XXXI,  §  6.]        AXCIEXT    SEMITIC    PROCEDURE  657 

delivered  over  into  the  hands  of  the  slain  man's  nearest  kinsman, 
"that  he  may  die,"  and  that  in  other  cases  where  the  death 
penalty  has  to  be  enforced  it  is  carried  out  by  the  community  in 
general.  Even  the  responsibility  of  judicial  blood-shedding  must 
needs  be  borne  by  as  many  as  possible.^ 

It  is  characteristic  of  primitive  Semitic  organisations  that 
there  are  no  specified  officials  to  pronounce  or  carry  out  legal 
decrees.  In  every  tribe  there  were,  and  are,  certain  leading 
families,  often  hereditary,  whose  heads  enjoyed  certain  privileges,^ 
in  return  for  which  they  performed  particular  duties  —  the  enter- 
taining of  guests,  the  protection  of  widows  and  orphans,  etc.  — 
but  except  when  the  tribe  is  organized  for  defence  or  offence,  the 
office  is  one  of  dignity  rather  than  authority.  The  sheikh  may  be 
called  upon  to  settle  differences  within  the  tribe,  or,  if  he  be  of 
repute,  men  from  outside  may  appeal  to  his  decision.  But  he  has 
no  judicial  powers,  and  if  either  of  the  parties  is  dissatisfied  he 
cannot  enforce  obedience.  Much  less  can  he  himself  inflict  punish- 
ment even  upon  the  poorest  man  of  the  tribe.  He  is  not  supported 
by  subordinate  officers  appointed  to  carry  out  his  decrees;  his 
weapon  is  persuasion  rather  than  compulsion.^ 

Such  tribes,  held  together  by  the  bond  of  blood,  in  course  of 
time  united  with  their  neighbours,  and  became  knit  together  by 
common  interests  and  practical  necessity,  and  when  the  occasion 
arose  for  joint  action,  the  leading  sheikhs  of  each  community 
consulted  together  and  took  the  reins  of  these  half-developed  states. 
These  steps  on  the  road  to  kingship  *  were  trodden  by  the  Israelites, 
whose  conditions,  in  the  earliest  periods  of  their  history,  can 
scarcely  have  been  very  different  from  the  pre-Islamic  Arabs  and 
modern  Bedouin.  How  utterly  removed  they  were  from  the  ad- 
vanced organisation  of  Hammurabi's  age  needs  no  demonstration. 

On  entering  Canaan,  the  Israelites  found  themselves  in  the 
presence  of  a  culture  superior  to  their  o\sti,  through  whose  in- 
fluence their  primitive  tribal  constitution  in  course  of  time  became 
entirely  lost.  But  the  superior  culture  of  the  Canaanites  rested 
solely  in  the  fact  that  they  were  a  settled  people,  who  lived  in 
towTis  and  were  familiar  with  agriculture,  and  the  excavations  in 

1  "Rel.  Sem."(2)  pp.  284  sq.,  304  sq.,  417  sqq. 

2  Thus  the  sheikh,  in  ancient  Arabia  also  called  sayyid,  "counsellor", 
(cp.  Heb.  sod),  receives  one-fourth  of  all  booty. 

3  See  Robertson  Smith,  "Prophets,"  p.  381,  "Kinship,"  (2)  p.  68; 
Doughty,  "Arabia  Deserta,"  i,  145  (and  passim);  Procksch,  op.  cit.  pp.  7 
sqq.:    Lady  Anne  Blunt,  "Bedouin  Tribes  of  the  Euphi-ates,"  ii,  231  sqq. 

■*  "Rel.  Sem."(2)  p.  33  sq.;   Blunt,  op.  cit.  p.  235  sq. 


658  PROCEDURE  [Part  IV. 

Southern  Palestine,  at  all  events,  do  not  lead  us  to  infer  that  the 
stage  of  civilisation  which  they  had  reached  was  as  high  as  the 
presumed  influence  of  Babylonia  would  have  led  us  to  expect. 
The  Canaanite  communities  consisted  of  cities  around  which  w^ere 
grouped  "daughters,"  villages  which  stood  in  a  subordinate  rela- 
tion to  them.  We  are  as  ignorant  of  the  details  of  their  constitu- 
tion as  we  are  of  that  of  their  northern  neighbours,  the  Phoenicians, 
although  several  considerations  tend  to  make  it  probable  that 
their  government  was  in  the  hands  of  an  aristocracy,  the  princes 
(sdrim),  elders  (zekenim),  or  lords  {he  dlwi)  of  the  Book  of  Judges,^ 
who  controlled  all  matters  affecting  the  interests  of  the  city 
(Judg.  viii  sq.).  That  they  held  legislative  powers  is  doubtless 
true,  in  so  far  as  might  makes  right.  Professional  judges  were 
not  known  in  the  earlier  period  of  Israelite  history;  even  in 
Egypt  it  is  questionable  whether  they  existed  before  the  New 
Kingdom.^  Of  the  Hebrew  terms  for  "judges,"  the  soter  is  pri- 
marily a  military  official,  and  it  is  not  until  post-exilic  literature 
that  it  is  applied  to  one  with  judicial  powers.^  The  mehokek  is  a 
commander  or  ruler,  and  the  same  appears  to  be  true  of  the  kdsin 
(the  familiar  Arabic  kdcli)  ^  The  mphetim  in  the  Book  of  Judges 
are  the  champions  or  deliverers  of  Israel ;  the  term  is  synonymous 
with  melek,  "king,"inHos.vii,  7,  Ps.  ii,  10,  and  as  an  official  title  of 
the  chief  magistrate  or  consul  in  Phoenician  cities  is  interpreted 
"king"  by  the  Greeks.''  A  noteworthy  exception  to  these  terms 
is  the  specific  designation  dayydn  (Heb.  and  Aram.),  correspond- 
ing to  the  Babylonian  rfa-a-ww,  c?a-ia-???/;  it  is,  however,  extremely 
rare,  and  appears  only  in  Ps.  Ixviii,  5  (6)  and  1  Sam.  xxiv,  15  (16) ; 
even  in  the  latter  passage  it  is  questionable  whether  it  belongs  to 
the  original  text.^ 

That  a  professional  class  of  judges  did  not  exist  is  also  borne 
out  by  the  fact  that  we  find  no  mention  of  them  in  the  oldest 

1  Cp.  Meyer,  EBi.  "  Phoenicia,"  §  16. 

^  Spiegelberg,  "Studien  und  Materialien  zum  RecMswesen  des  Pha- 
raonenreiches "  (Hanover,  1892),  p.  63. 

3  See  Driver's  note,  "Deut."  p.  17. 

*  From  Judg.  v,  14,  Sayce  ("Early  History  of  the  Hebrews,"  p.  121 
sq.)  wi'ongly  argues  that  there  were  lawgivers  in  the  oldest  period  of 
the  Hebrew  settlement.  There  would  be  no  object  in  lawgivers  corning 
to  a  military  assembly.  The  kasln  is  a  petty  ruler  ;  cp.  Is.  iii,  6  sq.,  xxii,  3 
(in  Mic.  iii,  1,  9,  parallel  with  "head,"  ros). 

^  Meyer,  EBi.  "Phoenicia,"  §  16;    Moore,  ib.  "Judges,"  §  1. 

^  The  LXX.  reads,  "May  the  Lord  be  a  judge  and  arbiter,"  and 
Budde  {Samuel,  ad  loc.)  rightly  suspects  that  dayydn  is  an  adchtion. 
For  the  sake  of  completeness  mention  must  also  be  made  of  pillel,  to 
mediate,  arbitrate ;  cp.  pelllah,  an  umpire's  work,  Is.  xvi,  3,  in  late 
Hebrew,  a  matter  for  judgment  {i.q.  Hebr.  pellll). 


Chap.  XXXI,  §  6.]        AXCIEXT    SEMITIC    PROCEDURE  659 

Israel  law-book,  the  Book  of  the  Covenant  (Exod.  xxi-xxiii)/  and 
the  story  of  Nabotli  (1  Kings  xxi)  shows  that  in  the  middle  of  the 
eighth  century  judicial  functions  still  lay  in  the  hands  of  the 
aristocracy  and  elders.  Appeal  could  be  made  to  the  head  of 
the  state,  and  the  readiness  with  which  a  complainant  could  gain 
the  king's  ear  is  illustrated  by  the  story  of  the  woman  of  Tekoa  (2 
Sam.  xiv,  4  sqq.),  and  the  judgment  of  Solomon  (1  Ki.  iii,  16-28).^ 
But  as  long  as  judicial  powers  continued  to  be  exercised  by  the 
nobles  and  highest  of  the  land,  there  was  no  higher  authority  to 
whom  to  appeal  against  injustice,  and  the  passionate  outcry  of 
the  prophets  against  the  unjust  dealings  of  the  royal  families  of 
the  land  (Is.  i,  23,  Jer.  xxi,  11  sq.  Mi.  iii,  9)  stands, in  unpleasant 
contrast  with  Babylonia,  where  Hammurabi,  as  his  letters  show 
us,  investigated  the  suits  of  his  poorest  subjects,  and  did  not 
hesitate  to  reverse  the  decisions  of  his  governors. 

The  system  of  electing  subordinate  judges  under  the  control  of 
a  supreme  central  authority  was  an  innovation  in  Israel.  Tra- 
dition itself  realised  that  it  was  not  part  of  the  desert  heritage, 
and  ascribed  its  initiation  to  the  Midianite  Jethro,  the  father-in- 
law  of  Moses  (Ex.  xviii),  or  to  Moses  himself  (Deut.  i,  9  sqq.). 
The  system  is  practically  one  adapted  for  administrative  purposes,^ 
and  whereas,  according  to  the  Elohist  in  the  former  passage, 
Moses  chooses  the  officers,  the  Deuteronomist  leaves  the  choice 
to  the  people,  and  Moses  only  charges  them  with  their  duties. 
The  practice  of  referring  difficult  or  contested  cases  to  a  supreme 
head  is  similar  to  that  which  the  Chronicler  ascribes  to  Jehoshaphat 
(2  Chron.  xix),  and  it  is  upheld  by  the  Deuteronomist,  who  em- 
phatically insists  upon  the  sanctity  of  the  priests'  decisions  (Deut. 
x\'i,  18-20 ;  xvii,  8—13) .  The  actual  date  of  its  introduction  is  uncer- 
tain. At  all  events,  the  "elders"  (zekenim)  had  been  in  possession 
of  a  certain  amount  of  judicial  authority,  which  they  still  partly 
retain  in  the  time  of  the  Deuteronomist  (Deut.  xix,  12  ;  xxii,  15  sq). 
It  is  about  the  period  of  Josiah's  reformation,  or  a  little  later,  that 

1  In  Ex.  xxi,  22  the  text  is  corrupt.  The  judges  do  not  appear  in 
t).  30,  where  some  reference  to  them  would  certainly  be  expected.  1  Sam. 
vii,  16  sq.,  viii  cannot  be  taken  as  e\ddence  for  judicial  authorities  in 
early  times ;    the  passages  are  late. 

^  Cp.  also  2  Sam.  xv,  2  sqq.,  2  Ki.  xv,  5.  In  the  Amarna  Tablets 
XXV,  .30-34,  45)  the  king  of  Alasia  (Cyprus)  uses  his  good  offices  for  the 
return  of  the  property  of  one  of  his  citizens  who  had  died  in  Egypt. 

^  The  traces  of  a  parallel  account  in  Nu.  xi  are  too  obscure  to 
build  upon  ^vith  certainty.  The  diAasions  into  thousands,  hundreds, 
fifties,  and  tens  scarcely  originated  in  Babj^Ionia,  where  the  unit  Avas 
sixty ;  AssjTian  texts,  however,  according  to  Sayce,  speak  of  captains 
of  fifty  and  hen  ("Early  History  of  the  Hebrews,"  p.  191). 


660  PROCEDURE  [Part  IV. 

the  priests,  who  are  the  natural  intermediaries  whenever  a  divine 
decision  is  required,  begin  to  receive  greater  powers.  In  Deu- 
teronomy they  investigate  legal  cases,  and  the  evident  attempt  to 
place  them  upon  equal  footing  with  the  judges  (xix,  1 7 ^g.), together 
with  the  emphasis  laid  upon  the  inviolability  of  their  decrees 
(xvii,  9b,  10a,  116),  and  the  consequent  weakening  of  the  authority 
of  the  elders,  suggest  that  a  change  in  Israelite  legal  procedure  is 
introduced,  which  is  not.  improbably  foreign  to  the  original  scope 
of  that  law-book.^ 

In  Babylonia,  in  addition  to  the  judges,  it  would  appear  that 
daw  could  be  dispensed  by  the  civil  governors  and  the  priests,  and 
Sayce  remarks  that  in  certain  cases,  where  foreigners  were  in- 
volved, "the  elders"  of  the  city  take  their  place  among  their 
judges.-  x4.ccording  to  the  same  authority,  the  judges  probably 
went  on  circuit,  but  this  appears  to  be  only  an  assumption  from 
the  allusion  to  Samuel's  activity  in  1  Sam.  vii,  16,  and  the  "royal 
judges"  of  Persia;  in  Egypt,  however,  the  circuit  system  appears 
to  be  vouched  for  in  Ptolemaic  times,  and  Moret  finds  indications 
of  this  early  attempt  to  centralise  justice  as  early  as  the  twelfth 
dynasty.^ 

Difficult  cases  are  referred  to  a  divine  authority.  The  god  is  a 
"giver  of  decisions."^  The  Arabs  of  different  clans  sank  all 
differences,  and  accepted  Mohammed's  decisions  by  reason  of  his 
divine  authority  ;  in  Israelite  tradition,  the  Hebrews  of  the  twelve 
tribes  came  to  Moses  for  the  statutes  and  laws  of  God ;  and  when 
written  laws  are  introduced,  they  receive  their  authority  by  being 
ascribed  to  an  Ea,  the  god  of  culture,  or  a  Samas,  the  god  of  law 
and  justice.  In  Babylonia,  from  the  earliest  times,  we  find  that 
the  "gate"  was  the  place  where  justice  was  administered.  One 
contract-tablet  speaks  of  litigant  parties  repairing  to  the  judges, 
who  bring  them  to  the  gate  {bcib)  of  the  goddess  Nin-marki,  where 
they  duly  give  evidence ;  elsewhere  the  scene  is  the  gate  of  the 
god  Nun-gal,  the  house  of  Samas  or  the  gate  of  Samas,  and  the 
house  of  Marduk.^  The  sanctuary  is  specifically  an  appropriate 
place,  since  the  solemn  oath,  taken  in  doubtful  cases  or  for  the 

1  See  "The  Hexateuch"  (ed.  Carpenter  and  Harford-Battersby),  vol.  2, 
notes  on  Deut.  xvii,  8  ;  xix,  17  sq.;  xxi,  2,  5.  ■ 

2  "Babylonians  and  AssjTians,"  p.  198  sq.  On  the  sibutu  {KB  iv,  23, 
1.  25,  1.  2.3). 

2  Maspero,  "Rec.  de  Travaux,"  new  series,  i,  44—49  (1895).  According 
to  Erman  ("Life  in  Ancient  Egypt,"  p.  87),  the  administration  of  justice 
was  thus  centralised  even  under  the  Old  Empire. 

*  "Rel.  Sem."  O  p.  70;   cp.  n.  2. 

*  Meissncr,  op.  cit.  (below),  nos.  43,  78  sq.,  100,  110. 


Chap.  XXXI,  §  6.]       AXCIEXT    SEMITIC    PROCEDURE  G61 

confirmation  of  the  evidence,  is  made  before  the  deity  or  his  repre- 
sentative.^ Similarly  in  Israel  the  place  of  resort  for  judgment 
might  be  a  sacred  site  —  the  three  places  visited  by  Samuel  had 
the  reputation  of  sanctity  (1  Sam.  vii,  16,  cp.  LXX.) — but  in  ordi- 
nary cases  the  presence  of  witnesses  was  all  that  was  required, 
and  the  city  gate,  then  as  now  the  scene  of  business  activity, 
served  the  purpose  of  a  law-court  (Job  xxix,  7  sqq.).  It  was  not 
difficult  to  collect  ten  men  of  repute  and  standing  to  act  as  wit- 
nesses (Ruth  iv,  2),  and  legal  contracts  were  unnecessary.  It 
strikes  one  as  quite  in  accordance  with  the  business  instincts  of 
the  Babylonians  that  out  of  the  primitive  system  of  administer- 
ing justice  at  the  gates  in  the  presence  of  witnesses,  the  evidence 
being  attested  by  an  oath,  they  should  have  developed  the  practice 
of  building  temples  at  these  places,  in  order  that  the  oath  might 
be  taken  under  the  most  sacred  surroundings.  The  primitive 
Bedouin  of  to-day  considers  a  solemn  attestation  sufficient  in  ordi- 
nary disputes  —  mercantile  pursuits,  one  imagines,  had  seriously 
corrupted  the  inherited  simplicity  of  the  Babylonians. 

The  Code  of  Hammurabi  is  quite  in  touch  with  early  Semitic 
custom  when,  under  certain'  circumstances  where  independent 
evidence  is  not  available,  it  lays  down  that  a  man  must  appear 
"before  God"  (mahar  ilim),  or  undergo  an  ordeal.  To  be  more 
specific,  the  solemn  attestation  applies  to  a  man  who  has  been 
robbed  and  the  thief  remains  at  large  (§  23),  to  a  shipowner  whose 
ship  is  lost  (§  240),  to  a  merchant  who  would  regain  the  price  he 
paid  for  slaves  (§  281),  to  depositors  whose  deposits  have  been 
lost  whilst  in  the  keeping  of  another  (§§  120,  126).  In  every  case 
the  man  who  would  recover  his  property  (money  or  goods)  must 
assess  his  loss  "before  God."  A  similar  procedure  is  to  be  ob- 
served when  a  man  would  clear  himself  of  a  charge.  Thus,  a  man 
from  whom  a  fugitive  slave  has  escaped  (§  20),  an  agent  who  is 
robbed  of  his  merchant's  goods  (§  103),  the  herdsman  who  has 
hired  an  ox,  which  dies  by  a  "stroke  of  God"  whilst  under  his 
care  (§  249),  the  wife  who  is  falsely  accused  of  adultery  (§  131)  — 
these  may  protest  their  innocence  and  go  free.  Analogous  to  the 
above  are  the  cases  where  an  agent  who  accuses  a  merchant  of 

1  So,  in  CH,  §  9,  where  stolen  propertj^  is  found  in  the  hands  of  an- 
other, the  ■\\itnesses  for  the  accuser  (who  know  the  lost  property)  and 
for  the  accused  (who  testify  that  the  article  was  bought  in  their  presence) 
say  out  "before  God"  what  they  know,  and  the  judge  gives  his  decision. 
The  disputed  object  is  usually  brought  and  deposited  "with  the  god  {Mciss- 
ner,  "Beitr.  z.  altbab.  Privatrecht,"  p.  5).  For  illustrations  of  modern 
procedure  among  the  Bedouin,  see  Palmer,  "Desert  of  the  Exodus," 
i,  87  (1871) ;   Jaussen,  "Revue  Biblique,"  1903,  pp.  252  sq.,  259  sqq. 


662  PROCEDURE  [Part  IV. 

wronging  him  puts  him  to  account  "before  God  and  witnesses" 
(§  106  sq.),  and  wdiere  the  shepherd,  w^hose  sheep  are  killed  by  a 
"stroke  of  God"  or  a  Hon,  "declares  his  innocence  (or  purges  him- 
self) before  God"  (§  266).  Here  also  may  be  mentioned  the  two 
instances  where  the  man  who  has  wounded  another,  or  the  brander 
who  has  made  an  indelible  mark  upon  a  slave,  may  swear  that  the 
act  was  not  done  "wittingly"  ^  (§§  206,  227). 

In  early  Hebrew  law,  in  the  Book  of  Covenant,  we  may 
also  distinguish  two  methods.  Tlie  man  from  whose  keeping  a 
neighbour's  deposit  is  stolen  can  resort  "to  God"  (eldhlm)  to  clear 
himself  (Ex.  xxii,  7  sq.),  and  in  like  manner  a  suspected  herdsman 
can  take  the  "oath  of  Yah  we"  {sebuath  Yahive)  that  he  has  not 
put  his  hands  to  his  neighbour's  goods,  and  go  free  (Ex.  xxii,  10  sq.). 
These  correspond  to  the  second  series  in  the  CH  (cp.  especially 
§§  120,  266),  and  are  evidently  different  from  the  law  in  Ex.  xxii,  9, 
which  is  couched  in  the  most  general  terms,  and  possibly  does 
not  refer  to  deposit,  but  to  stolen  property.  Here,  it  is  not  the 
accused  alone  who  comes  to  Elohim  to  clear  himself  of  suspicion, 
but  the  passage  deals  with  a  dispute  between  two  parties  whose 
case  is  brought  to  the  "god  of  decisions"  for  his  judgment  (cp. 
1  Sam.  ii,  25a).     It  is  the  procedure  w^hich  underlies  the  ordeal. 

In  the  old  contract-tablets  the  depositions  are  made  before 
(mahar)  witnesses,  and  the  parties  to  the  suit  sw^ear  by  (nis)  the 
principal  deities  and  the  reigning  sovereign.^  In  Egypt,  a  similar 
oath  by  the  name  of  the  Pharaoh  w^as  frequent.  A  man  swore, 
"by  Amon,  by  the  prince  whose  spirits  are  dead,  by  Pharaoh  my 
lord,"  and  the  "king's  oath,"  as  it  was  called,  was  usually  fol- 
lowed by  an  imprecation.  "May  I  have  a  hundred  strokes,  or 
give  me  over  to  the  crocodile,"  maiming,  and  exile  to  the  mines 
of  Ethiopia,  figure  among  the  oaths  sworn  by  Egyptian  suspects.' 
The  old  Hebrew  methods  of  oath-taking  are  too  well  known  to 
need  repeating.^    At  the  present  day,  point  may  be  given  to  an 

^  ina  i-du-u,  "with  knowledge";  cp.  bi-bell  da'ath,  Deut.  iv,  42,  etc. 
(the  later  equivalent  being  vi-segagah). 

^  E.g.,  by  Nannar,  Marduk,  and  Hammurabi  {KB  iv,  21),  or  even  by 
the  king  alone  (ib.  iv,  25).  Acco^rding  to  Meissner  ("Beitr.  z.  altbab. 
Privatreeht,"  p.  5)  the  oath  is  taken  by  the  name  of  the  tutelary  deity 
of  the  city,  the  principal  deity  of  the  land,  and  other  gods,  sometimes 
even  by  the  name  of  the  native  city  of  the  contracting  parties.  The 
practice  is  found  as  late  as  the  time  of  Darius. 

^  Spiegelberg,  "Studien  u.  Materialien  z.  Rechtswesen  d.  Pharaonen- 
reiches"  (Hanover,  1892),  pp.  70-77  (p.  75,  "To  him  was  the  king's  oath 
given  to  say  no  lies,  he  [said]  Ethiopia") ;  "Arbeiter  und  Arbeiterbewe- 
gung  im  Pharaonen-reich  unter  den  Ramessiden"  (Strassburg,  1895), 
p.  20. 

*  See  EBi.  art.  "Oath."     The  later  post-biblical  usages  are  illustrated 


Chap.  XXXI,  §  6.]       AXCIEXT   SEMITIC    PROCEDURE  663 

oath  by  the  addition  of  such  a  wish  as,  "He  who  hes  may  none 
be  born  to  him."  ^ 

The  oath  of  purgation,  which  thus  allows  the  accused  to  clear 
himself  of  an  imputed  crime  by  swearing  that  the  charge  is  false, 
is  regarded  as  entirely  efficacious,  since  the  deity  in  whose  presence 
it  is  taken  is  confidently  expected  to  avenge  himself  upon  the 
perjurer.-  Primarily  the  ceremony  is  performed  in  a  holy  place 
before  the  god  himself,  or  it  may  be  in  the  presence  of  the  priest, 
the  authorised  intermediary  of  the  god.  The  practice  recorded 
by  a  writer  of  the  Deuteronomic  age,  in  accordance  with  which 
a  man  could  swear  his  innocence  before  Yahwe's  altar  at  Jerusalem 
(1  Kings  viii,  31  sq.),  in  earlier  days,  before  the  institution  of  the 
central  sanctuary,  must  have  been  customary  at  every  shrine  or 
holy  place.  To  take  the  name  of  Yahwe  falsely,  therefore,  was 
to  perjure  one's  self.  Under  the  Deuteronomic  reformation  the 
oath  of  purgation  would  be  taken  before  the  authorised  officials 
(Deut.  xix,  17),  even  as  among  the  Bedouins  of  the  present  day  it 
may  be  made  before  the  sheikh.^  From  this  oath  we  must  of 
course  distinguish  the  curse  which  the  victim  of  a  theft  calls  down 
upon  the  thief,  or  the  adjuration,  equally  based  upon  a  belief  in  the 
efficacy  of  the  curse,  which  solemnly  calls  upon  any  man  who 
has  knowledge  of  the  offence  to  say  all  that  he  knows. 

The  belief  that  the  deity  punishes  the  guilty  one  who  swears 
that  a  charge  is  false  is  intimately  connected  with  the  theory  of 
the  ordeal  where  it  is  left  to  him  to  indicate  in  some  recognisable 
manner  whether  a  man  is  guilty  or  not.  Instead  of  the  oath  of 
purgation  a  test  is  employed.  The  Code  of  Hammurabi  uses  it 
only  in  two  cases,  and  on  each  occasion  it  is  by  water.  The  river- 
god  (ilu  Nam)  has  to  decide  whether  a  man  upon  whom  a  spell 
has  been  cast  has  suffered  unjustly  (§  2),  and  whether  a  wife  who 

in  the  Mishnah  (tract.  Shebuoth),  where  some  of  the  formulae  are  given. 
An  accused  protests  his  innocence.  The  accuser  says,  "I  adjure  thee." 
If  the  man  repHes  "Amen,"  and  is  proved  guilty,  he  is  culpable.  "Amen" 
is  thus  the  legal  term  with  which  the  accused  expresses  his  readiness  to 
accept  the  adjuration  {cp.  Hogg,  "Jewish  Quarterly  Re\'iew,"  1896, 
p.  17). 

1  Swing,  PEFQ,  189.5,  p.  172  sq. 

2  "Rel.  Sem."  p.  480;  cp.  Jaussen,  "Rev.  Biblique,"  190.3,  p.  259  (a 
guilty  Bedouin  agrees  to  take  an  oath  [halifa]  at  a  holy  tomb,  but  on  his 
way,  fearing  the  possible  consequences,  is  filled  with  terror  and  confesses). 

'  An  interesting  development  of  the  oath  taken  in  a  holy  place  is  re- 
corded bv  Baldensperger,  wiiere  two  parties  arranged  to  settle  a  dispute 
and  agreed  to  swear  by  St.  George  {PEFQ,  1897,  p.  131).  To  avoid  the 
trouble  of  dressing  in  festival  clothes  and  repairing  to  his  shrine,  it  was 
decided  to  make  a  mark  on  the  ground  to  represent  the  saint's  abode 
("He  is  over  against  us  but  can  be  present  just  as  well"). 


664  PROCEDURE  [Part  IV. 

has  fallen  under  the  suspicion  of  unchastity  is  innocent  (§  132). 
The  victim  must  plunge  into  the  sacred  element,  which  overpowers 
the  guilty  and  saves  the  innocent.^  The  revenge  taken  upon  the 
impious  finds  analogies  in  the  waters  of  the  Asbamsean  lake,  the 
springs  near  Tyana,  and  the  Stygian  waters  in  the  Syrian  desert 
—  not  to  speak  of  the  striking  parallel  of  the  "waters  of  Jealousy  " 
in  Israel  —  which  harmed  only  the  perjured."  But  the  river-god, 
instead  of  punishing  the  wicked,  may  repudiate  them,  on  the 
principle  that  impurity  and  guilt  must  not  come  in  contact  with 
sacred  things.  So  in  Arabia,  those  who  were  suspected  of  witch- 
craft —  not  their  victims,  as  in  Babylonia  —  were  thrown  to  the 
water,  and  since  the  god  would  only  receive  the  innocent,  the 
guilty  ones  were  those  who  floated :  the  procedure  that  has  pre- 
vailed in  dealing  with  suspected  witches  down  to  modern  times.^ 
Arguing  from  the  same  point  of  view,  the  Laws  of  Manu  allowed 
a  man  to  justify  his  oath  of  purgation  by  remaining  under  water 
a  certain  length  of  time  (viii,  114  sq.),  and  —  to  go  still  further  away 
from  the  Semitic  world  —  in  Burmah  the  parties  to  a  suit  keep 
their  heads  under  water,  and  the  one  who  emerges  first  is  reckoned 
guilty.'' 

Although  the  laws  in  CH  relating  to  judges  and  witnesses  are 
few,  the  contract-tablets  reveal,  as  might  be  expected,  a  very 
advanced  system  of  procedure.^  Evidence  was  drawn  up  in  legal 
form  and  written  upon  tablets,^  and  each  case  was  examined  with 
commendable  thoroughness  (cp.  CH,  §  9).  The  general  principle 
not  to  pervert  judgment,  accept  bribes,  or  to  show  favouritism  — 
and  the  frequency  with  which  these  exliortations  appear  in  the 
Old  Testament  is  an  indication  of  the  prevalence  of  injustice  in 
Israel  ^  —  if  not  expressed  in  so  many  words,  at  all  events  lies  at 
the  bottom  of  CH,  §  5.  Here,  if  a  judge  has  judged  a  judgment 
{sum-ma  da-a-a-num  di-nam  i-di-in),  has  decided  a  decision  {pu-ru- 
uz-za-am  ip-ru-us),  and  delivered  a  sealed  sentence  (ku-nu-uk-kam) , 
and  subsequently  his  judgment  is  annulled  {di'^n-su  i-te-m,i),  he  is 

'  Dareste  ("Journal  des  Savants,"  1902,  p.  519,  n.  1)  notes  the  same 
principle  in  the  old  German  custom  of  testing  the  legitimacy  of  children 
by  throwing  them  into  the  water ;  one  may  compare  also  the  Sicilian 
oracle,  where  the  tablet  bearing  the  oath  of  the  accused  floated  if  true  and 
sank  if  false  (Pseudo- Aristotle,  "  Mir.  Ausc."  57). 

''  "  Rel.  Sem."  C)  p.  179  sq. 

8  Cp.  Wellhausen,  "Arab.  Held."  (J)  p.  160  (on  p.  189,  however,  those 
unjustly  suspected  of  wtcheraft  float). 

*  Frazer,  "Pausanias,"  iii,  388  (other  water-oaths  and  tests,  iv,  253  sq.). 
^  Cp.  Sayce,  "Babylonians  and  Assyrians,"  chap.  9. 

*  Written  evidence  appears  to  be  unknown  in  Israel  until  the  time  of 
the  book  of  Job  (xiii,  26;    xxxi,  35). 

'  Ex.  xxiii,  3,  6-8;   Deut.  .xvi,  19,  xxiv,  17,  xxvii,  19;   Lev.  xix,  15,  etc. 


Chap.  XXXI,  §  6.]       ANCIENT    SEMITIC    PROCEDUKE  G65 

ordered  to  pay  twelve  times  the  penalty  he  had  ordained  in  his 
decision,  and  is  openly  (properly,  "in  the  assembly,"  puhru) 
thrust  from  the  bench ;  he  cannot  be  reinstated,  and  is  not  allowed 
to  sit  in  judgment  with  the  judges.  There  are  two  disputed 
phrases  in  the  law  as  it  stands.  In  the  first  place,  the  judgment 
is  presumably  annulled  by  an  appeal,  either  to  a  fresh  court  or  to 
the  king  himself.  In  the  contemporary  letters  of  Hammurabi 
and  his  dj-nasty,  the  king  is  frequently  appealed  to  either  directly 
or  after  a  case  had  been  tried  at  the  local  courts.  In  one  instance 
the  litigants,  having  failed  for  two  years  to  obtain  justice  at  Sippar, 
apply  to  the  king,  who  gives  orders  for  the  defendant  and  the 
"witnesses  who  have  knowledge  of  his  case"  to  be  brought  to  him 
at  Babylon  for  judgment.  In  another  we  find  Hammurabi  in- 
vestigating a  charge  of  bribery  against  one  of  his  officials ;  he 
confiscates  "the  money  or  whatsoever  was  offered  as  the  bribe," 
and  commands  the  men  who  had  taken  it  and  the  witnesses  to 
be  sent  to  him  for  trial. ^  On  the  other  hand,  Scheil  and  Johns 
render,  "if  .  .  .he  has  annulled  (altered)  his  judgment,"  which 
seems  hardly  natural,  since  the  judge,  however  much  of  a  partisan, 
would  scarcely  go  back  from  his  written  verdict.  It  is  possible 
that  the  law  refers  to  judicial  error,  but  the  penalty  and  subsequent 
punishment  would  be  excessively  severe.^  In  the  second  place, 
the  "twelve-fold"  (a-du  12  su)  penalty  has  been  disputed,  and 
Winckler,  in  his  edition  of  the  Code,  understands  it  to  mean  that 
the  penalty  consists  of  the  sum  (in  the  judgment)  together  with 
^f ,  that  is  to  say,  an  additional  20  per  cent.  The  addition  of  a 
fifth  —  as  in  late  Israelite  law  (Lev.  vi,  5,  xx\'ii,  15-19 ;  Num.  v,  7)  — 
is  suggestive,  but  there  are  serious  objections  against  this  view.^ 

Next,  attempts  to  intimidate  the  witnesses,  or  the  giving  of 
evidence  which  cannot  be  proved,  is  severely  punished,  and  if  it 
be  a  life  or  death  case  {di-in  na-hi-is-iim) ,  the  offender  is  killed 
(§  3).  Bribery  is  rigorously  discountenanced,  and  the  man  who 
has  offered  corn  or  money  is  punished  by  being  made  to  bear  the 
penalty  of  the  judgment  (a-ra-an  di-nim,  §  4).  In  Israel,  false 
witness,  prohibited  among  the  additions  to  the  Book  of  the  Cove- 
nant (Ex.  xxiii,  3)  and  in  the  Decalogue,  is  punished  under  the  Deu- 
teronomic  code  in  the  same  manner  as  in  CH  :  "  You  shall  do  unto 
him  as  he  purposed  to  do  to  his  brother"  (Deut.  xix,  19) ;  but  one 

^  King,  "Letters  of  Hammurabi,"  iii,  21  sq.,  136. 

2  In  the  ease  of  a  judge  who  has  not  acted  in  good  faith,  later  Jewish 
law  required  a  sacrifice  ("Mishnah,"  "Horaioth."  i,  5,  etc.). 

3  See  Joh.  Jeremias,  "Moses  und  Hammurabi,"  p.  25,  n.  2;  Orelli, 
"Gesetz  Hammurabis,"  p.  47. 


666  PROCEDUKE  [Part  IV. 

can  scarcely  conclude  that  the  law  which  Is  aimed  at  repressing 
false  accusations  (denounced  in  general  terms  in  Ex.  xxiii,  1)  owed 
its  origin  to  Babylonia.  The  same  ruling  held  good  in  Egypt, 
and,  indeed,  the  principle  of  the  talio  has  prevailed  in  all  primitive 
judicial  systems.  The  Deuteronomic  law  is  preceded  by  one  in 
accordance  with  which  serious  crimes  required  the  concurrent 
evidence  of  "two  or  three"  witnesses  as  proof  of  guilt  {v.  15), 
particularly  in  all  capital  cases  (cj).  Num.  xxxv,  30;  Deut.  xvii,  6). 
The  procedure  is  frequently  referred  to  in  the  New  Testament 
(Matt,  xviii,  16,  xxvi,  60;  2  Cor.  xiii,  1 ;  1  Tim.  v,  19),  and  must 
have  been  general,  since  it  finds  a  place  in  the  Syro-Roman  law-book 
of  the  fifth  century,  which  actually  preserves  the  same  loose  word- 
ing, "two  or  three."  ^  In  the  last-mentioned  collection  of  laws, 
the  penalty  for  unjust  accusation  is,  as  is  to  be  expected,  based 
upon  the  talio:  "As  he  (the  accuser)  would  do  unto  his  com- 
panion, so  shall  it  be  done  unto  him."  ^ 

Legal  disqualifications  of  certain  persons  to  act  either  as  judges 
or  witnesses,  and  the  more  minute  details  of  judicial  procedure, 
do  not  appear  to  be  codified  before  the  time  of  the  Mishnah.^ 
The  Syrian  law-book  requires  witnesses  to  be  freedmen  and 
trustworthy,  not  slaves,  men  who  have  never  been  convicted  of 
misdeeds  —  theft,  robbery,  sorcery  (Syr.  harrasuthd),  and  the  like 
—  "who  have  not  been  guilty  of  objuration"  (?  i^a)fio<;ia),  and 
are  not  relations,  friends,  or  business  associates  of  the  parties. 
In  Babylonia  witnesses  appear  to  have  formed  an  official  class ;  ^ 
since  every  act  of  business,  legal  or  otherwise,  had  to  be  set  down 
in  contracts,  reputed  and  qualified  men  were  doubtless  in  frequent 
demand  as  witnesses. 

The  Babylonian  system  of  judicial  procedure,  it  would  appear, 
did  not  leave  its  stamp  upon  early  Israelite  institutions.  Both 
share,  it  is  true,  the  sacred  oath  and  the  ordeal,  but  these  are 
common  Semitic  property,  and  are  by  no  means  confined  to  the 
Semitic  field.     The  denunciation  of  false  witness  does  not  become 

1  Bruns  and  Sachau,  "  Syriseh-Romisehes  Rechtsbueh  aus  dem  fiinften 
Jahrhundert"    (Leipsie,   1880),  p.   106. 

^  Op.  cil.  p.  70  (no.  75).  Examples  of  the  minuteness  of  the  post- 
biblieal  Jewish  rules  relating  to  false  evidence  may  be  seen  in  the  "Jewish 
EncyelopjTedia,"  i,  394  a. 

'  Cp.  also  the  fulness  of  detail  in  the  Mohammedan  systems  (abstract 
by  Kohler,  "  Rechtsvergleich.  Stud."  pp.  149-161).  According  to  Josephus 
("Ant."  IV,  viii,  15),  there  must  be  three  or  at  least  two  ^vitnesses,  reliable 
men ;   neither  women  nor  slaves  are  admitted. 

*^lbu{ti),  "witness"  (abstract  slbutu),  properly  the  elders  or  "gi'ey- 
beards"  (cp.  Heb.  se6a/i?),  corresponding  to  the  sheikhs  or  z^fcenim  (above)  ; 
cp.  Joh.  Jeremias,  "Moses  u.  Hammurabi,"  p.  29;  Meissner,  "Beitr.  z. 
altbab.  Privatr."  pp.  5,  sq.,  95). 


Chap.  XXXI,  §  6.]      ANCIENT    SEMITIC    PROCEDURE  667 

codified  until  the  time  of  Deuteronomy,  at  a  period  when  the 
administration  of  justice  was  reconstructed  and  centraHsed.  On 
the  other  hand,  the  precautionary  rule  that  "two  or  three"  wit- 
nesses are  required  in  criminal  cases,  although  fairly  widespread, 
does  not  find  a  place  in  Babylonian  law. 

Procedure,  as  we  learn  from  the  legal  documents  of  the  great 
law-suit  under  Rameses  IX.  (twelfth  century  B.C.),  was  no  less 
developed  in  Egypt.  Officers,  appointed  Jj^tke  gm^^mment,  sat 
in  judgment  daily,  and  received  their  salary  from  the  fees  paid 
by  litigants.  The  evidence,  as  in  Babylonia,  was  in  writing,  and 
could  be  extracted  from  unwilling  lips  by  torture  —  a  method 
apparently  unknown  in  Babylonia.^  Under  the  New  Empire  the 
courts  of  justice  differ  in  name  and  constitution  from  those  of  the 
Old.  The  judges  were  largely  priests,  supported  by  permanent 
officials,  including  a  scribe,  but  the  composition  of  the  court 
varied  considerably.-  The  contrast  between  the  methods  that  pre- 
vailed in  Egypt  and  Babylonia  and  the  simple  primitive  "courts" 
of  the  early  Arabians  and  Israelites  is  thus  sufficiently  striking.^ 


^  Torture  is  rarely  practised  among  the  Bedouin  of  the  desert   (cp., 
however,  Doughty,  "Ar.  Des.,"  i.,  14). 

2  Erman,  "Life  in  Ancient  Egypt,  pp.  130  sqq. 
'  List  of  Abbreviations. 
"Encyclopaedia  Biblica,"  I-IV  (London,  1899-1903)  =  EBi. 
Robertson  Smith,  "  The  Old  Testament  in  the  Jewish  Church  "  (second  edi- 
tion ;    London,  1892). 
"The  Prophets  of  Israel"  (second  edition  ;  London,  1895). 
"Lectures  on  the  Religion  of  the  Semite"  (second  edition;    London, 

1894)  =  Rel.  Sem.C). 
"Kinship  and  Marriage  in  Early  Arabia"  (second  edition;    London, 
1903)  =  "Kinship  "(2). 
"  Keilinschriftliehe  Bibliothek  "  (ed.  Schroder,  Yo\.  IV  —  Assyrian  texts  ; 

ed.  Peiser  (Berlin,  1896)  —  Legal  and  business  texts)  =  KB. 
Wellhausen,  "  Die  Ehe  bei  den  Arabern  "  (Nachrichten  v.  d.  kgl.  Gesellsch. 
d.  Wissensehaft,  Gdttingen,  1893;   No.  xi). 
"  Reste  Arabischen  Heideutums  "  (second  edition  ;   Berlin,  1897). 
"  Palestine  Exploration  Fund,  Quarterly  Statements  "  (London,  1869  —     ) 

=  PEFQ. 
"Zeitschrift  des  deutsehen  Palastina^-Vereins  "  (1878-     )  =  ZDPV. 
"  Zeitschrift   der  deutsehen  morgenlandischen  Gesellschaft  "  (1846-      )  = 

ZDMG. 
Bruns    and  Sachau,   "  Syrisch-Romisches  Reehtsbuch   aus  dem  fiinften 

Jahrhundert"  (Leipzig,  1880). 
J.  Kohler,  "  Rechtsvergbeichende  Studien  iiber  islamitisches  Recht,"  etc. 

(Berlin,  1889). 

J.   Estlin   Carpenter    and  G.    Harjord-Battershy.      "  The   Hexateueh  .  .   . 

arranged  in  its  constituent  documents  .   .   .  vdX\\  introduction,  notes, 

marginal  references  and  synoptical  tables."     Two  vols.  (O.xford,  1900). 

JE.     The  oldest  Hebrew  documents  ascribed  to  the  Jahwist  and  Elohist 

schools  respectively. 
P.     The  \\Titings  of  the  Priestly  school. 
Oode  of  Hammurabi  =  CH. 


668  PROCEDURE  [Past  IV. 

Section  7 

ANCIENT    ROMAN    PROCEDURE  i 
1.  Roman   Civil  Procedure 

The  fundamental  characteristic  of  Roman  civil  procedure  in  the 
classical  period  is  the  division  of  all  judicial  proceedings  into  two 
sharply  distinguished  sections,  the  proceedings  'in  jure,'  and  the 
proceedings  'in  judicio.' 

The  proceedings  '  in  jure '  are  the  proceedings  before  the  magis- 
trate, that  is  to  say,  before  a  judicial  officer,  the  organ  and  repre- 
sentative of  the  sovereign  power  of  the  state.  And  since  the  intro- 
duction of  the  praetorship  the  '  m.agistrate '  means,  as  a  rule,  the 
praetor.  The  object  of  the  proceedings  in  jure  is,  firstly,  to  ascer- 
tain, whether  the  plaintift's  claim  is  admissible  at  all,  i.e.  whether 
there  is  any  form  of  civil  procedure  by  which  it  is  enforceable; 
secondly,  to  determine  the  nature  of  such  claim,  and,  at  the  same 
time,  to  fix  the  conditions  subject  to  which  it  can  be  asserted.  In 
the  absence  of  a  '  confessio  in  jure'  the  proceedings  in  jure  culminate 
in,  and  terminate  with,  the  so-called  'litis  contestatio,'  i.e.  the 
formulating  of  the  legal  issue,  the  object  of  which  is  to  supply  a 
foundation  for  the  'judicium'  and  thus  to  obtain  a  final  decision 
of  the  issue.  The  name  litis  contestatio  is  due  to  the  original 
practice  of  coupling  with  this  stage  of  the  proceedings  a  solemn 
appeal  addressed  by  each  party  to  his  witnesses.  The  granting 
of  the  litis  contestatio  by  the  magistrate  is  tantamount  to  a  deci- 
sion (decretum)  on  his  part,  that  the  plaintiff's  claim  is  admissible 
in  itself  and  must  be  enforced,  subject  to  such  limitations  as  result 
from  the  contents  of  the  litis  contestatio. 

The  proceedings  in  jure  however  can  never  lead  to  a  '  sententia,' 
i.e.  a  judgment,  in  the  legal  sense  of  the  term.  The  issue  having 
been  formulated  and  declared  prima  facie  admissible  by  means  of 
the  litis  contestatio,  it  is  necessary,  for  the  purpose  of  obtaining 
judgment,  that  the  proceedings  should  pass  out  of  the  hands  of 
the  magistrate  into  those  of  a  private  individual,  or,  in  some  cases, 
of  several  private  individuals  HTJfu^cating  as  a  collegiate  body.^ 

1  [Bj^  Rudolph  Sohm.  Reprinted  by  permission  from  "The  Institutes 
of  Roman  Law"  {Ledlie's  trans.),  Oxford  University  Press,  1892.] 

^  All  actions  touching  the  liberty  of  a  person  were,  during  the  republic, 
tried  by  a  standing  college  of  ten  sworn  judges  (decemviri  stlitibus  judi- 
candis).  Actions  concerning  vindications,  especially  the  hereditatis 
Adndicatio,  were  referred  to  the  college  of  centumviri  consisting  of  105, 
and  later  of  180  members,  who  were  grouped  in  several  committees  (con- 


Chap.  XXXI,  §  7.]        ANCIENT    RO^L^.N    PROCEDURE  669 

A  sententia,  in  other  words,  a  judgment,  In  the  legal  sense,  can  onh^ 
be  pronounced  by  a  private  person  who  cannot  exercise  any 
sovereign  discretion,  because  he  in  no  way  represents  the  absolute 
power  of  the  state,  but  is  bound,  by  the  oath  under  which  he  is 
acting,  to  adjudicate  in  strict  conformity  to  the  law  as  already 
established.  ^iThus  no  one  but  a  private  person  can  be  a  judex 
in  the  true  sense  of  the  term,  i.e.  an  organ  of  the  positive  lawj 
For  ever}'  decision  of  a  magistrate  is  formalK'  (even  in  civil  cases) 
an  assertion  of  his  sovereign  imperium  (a  decretum  or  interdictum). 
It  is,  legally  speaking,  not  a  verdict,  but  an  imperative  order. ^  On 
the  other  hand,  the  decision  of  a  judex,  i.e.  of  a  private  person 
acting  under  oath  and  under  an  authority  based,  not  on  imperium, 
but  on  ofEcium,  —  such  a  decision,  and  it  alone,  is  a  judgment, 
a  verdict,  a  '  sententia,'  and  not  an  order,  an  imperative  command. 
And  this  is  the  reason  why  the  law  of  civil  procedure  in  Rome 
required  that  the  magistrate  should  abstain  from  deciding  the  legal 
issue,  and  should  refer  such  decision  to  a  private  person  who 
is   thereby   appointed  judex   for   purposes   of   the   action.     The 

silia).  If  the  praetor  wished  to  have  a  matter  speedily  decided,  he  was 
able,  by  \drtue  of  his  imperium,  to  appoint  an  extra.ordinary  college  of, 
usually,  three  or  five  '  reeuperatores '  who  were  directed  to  find  a  verdict 
within  a  specified  time.  Such  cases  of  urgencj^  arose  especially  in  actions 
concerning  personal  libert}'  (vindieatio  in  libertatem),  ^\^th  the  result  that 
the  jurisdiction  of  the  decem\4ri  was  de  facto  displaced  by  the  court  of 
reeuperatores  —  a  circumstance  which  explains  why,  since  Augustus,  the 
decemviri  ceased  to  act  in  this  capacity.  Reeuperatores  were  also  ap- 
pointed in  actions  to  which  aliens  were  parties.  —  Like  the  single  judges, 
the  reeuperatores  (who  were  always  appointed  for  the  nonce)  and  the 
centumviri  were,  as  such,  private  persons.  Although  three  eentumviri 
were  selected  from  each  of  the  thirty-five  tribes,  there  is  nothing  to  show 
that  they  were  chosen  by  the  comitia  tributa.  The  decemviri  however 
had,  towards  the  close  of  the  republic,  to  be  elected  by  the  comitia  tributa, 
so  that  formally  they  belonged  to  the  magistratus  (minores)  populi 
Romani,  a  fact  which  however  did  not  alter  their  position  as  against 
the  litigant  parties.  All  sworn  judges  whatsoever,  including  the  decem- 
viri, stand  to  the  parties  solely  in  the  position  of  private  individuals 
(judex  privatus),  and  not  in  the  position  of  magistrates  equipped  with 
compulsory  powers ;   v.  Pernice,  "  ZS.  der  Sav.  St."  vol.  v.  p.  48. 

'  This  is  the  reason  why  a  magisterial  decision,  even  in  civil  matters, 
could  be  annulled  bj'  the  intercession  of  a  coordinate  or  a  superior  magis- 
trate, i.e.  by  means  of  a  counter-order  of  equal  imperati^'e  force  (im- 
perium). One  order  simply  annulled  the  other.  It  was  this  fact  that 
gave  rise  to  the  system  of  appeal  as  developed  in  the  older  Roman  law, 
one  magistrate  being  'appealed  to'  to  intercede  against  the  other.  The 
practice  of  appealing  to  the  emperor,  who  was  authorized  to  withdraw 
anj^  suit  in  the  empire  from  the  ordinary  courts  for  the  purpose  of  bring- 
ing it  before  his  own  court,  led,  during  the  principatus,  to  the  develop- 
ment of  the  modern  system  of  appeals,  under  which  (as  in  the  old  'provo- 
catio')  the  courts  are  ranged  in  a  series  of  higher  and  lower  instance,  a 
higher  court  trying  the  case  o^'er  again  with  a  view  to  pronouncing  a 
neiv  judgment.  Cp.  J.  Merkel.  '''Abhandlungen  aus  dem  Gebiete  des 
romischen  Rechts,"  Heft  2  :  "Uber  die  Geschichte  der  classischen  Appel- 
lation" (1883). 


G70  PROCEDURE  [Pakt  IV. 

principle  of  the  division  of  all  civil  procedure  into  the  two  stages 
of  proceedings  in  jure  and  proceedings  in  judicio  is  the  elimination 
of  the  magisterial  power  from  the  domain  of  private  law. 

The  issue,  then,  having  been  admitted  and  formulated  in  jure 
(litis  contestatio),  the  next  step  is  to  pass  it  on  for  trial  to  a  private 
judge,  or  judges,  acting  under  oath.  The  proceedings  before^he 
judex  are  called  the  proceedings  'in  judicio.'  The  object  of  these 
proceedings  is,  as  we  have  already  stated,  to  obtain  a  decision  of 
the  legal  issue  by  means  of  the  judgment  (sententia)  of  the  judex. 
The  judge's  first  business  will  be  to  ascertain  the  facts  of  the  case 
and  receive  such  evidence  as  he  deems  necessary ;  after  which  he 
will  proceed,  according  to  the  best  of  his  knowledge  and  good 
faith  (ex  animi  sententia),  to  pronounce  judgment,  i.e.  to  give  his 
verdict  on  the  legal  relationship  submitted  to  him. 

While  the  procedure  in  judicio  did  not,  as  far  as  we  can  see, 
undergo  any  material  alteration  from  the  time  of  the  Twelve  Tables 
down  to  the  end  of  the  classical  epoch,  an  important  reform  had 
been  effected  in  the  procedure  in  jure  towards  the  close  of  the 
republic.  The  system  of  legis  actiones  was  superseded  by  the 
formulary  procedure. 

2.    The  Legis  Actio 

The  litis  contestatio,  with  which  the  proceedings  in  jure  ter- 
minated, was,  in  the  earl}'  Roman  procedure,  a  solemn  act  of  the 
parties.  When  the  arguments  before  the  magistrate  had  concluded 
and  the  latter  was  about  to  grant  a  judicium,  both  parties,  having 
solemnly  called  upon  witnesses  to  testify  to  the  issue  between  them, 
proceeded,  in  the  presence  of  these  witnesses,  to  formulate  the  issue 
in  an  unequivocal  manner  by  means  of  their  own  formal  act,  using 
for  this  purpose,  certain  fixed  traditional  terms  (litis  contestatio). 
The  formulae  to  be  pronounced  were  determined  either  by  the 
wording  of  a  popular  statute,  the  statute  namely  on  which  the 
action  was  based,  or  by  old  traditional  custom  which  was  regarded 
as  possessing  the  same  force  as  a  law  (lex).  Hence  it  was  that  the 
act  of  performing  the  litis  contestatio,  nay,  even  the  entire  pro- 
cedure of  which  the  litis  contestatio  was  the  centre  and  pivot,  was 
called  a  'legis  actio,'  i.e.  a  proceeding  according  to  the  law.  And 
by  an  action,  in  the  true,  the  normal,  the  proper  sense  of  the  term, 
was  understood  a  proceeding  which  led  to  a  litis  contestatio  of  this 
Idnd,  and,  through  it,  to  a  judicium  and  the  judgment  of  a  sworn 
judge,  as  opposed  to  the  decision  of  a  magistrate.  But  there  was 
yet  another  sense  in  which  such  a  procedure  could  be  called  a 


Chap.  XXXI,  §  7.]        ANCIENT   ROMAN   PROCEDURE  671 

'legis  actio,'  in  the  sense  namely  that  not  only  the  form  of  the  litis 
contestatio,  but  the  very  right  of  the  party  to  claim  a  judicium  in 
any  such  case  on  the  ground  of  the  litis  contestatio,  was  determined 
by  the  lex,  or  custom  having  the  force  of  lex.  The  Roman  actio, 
in  other  words,  represents  a  right  of  the  plaintiff  not  only  as  against 
the  defendant,  but  also  as  against  the  magistrate,  a  right,  namely, 
to  ha^'e  a  judicium,  i.e.  a  right  to  have  the  judicial,  as  opposed  to 
the  administrative  machinery,  placed  at  his  disposal,  in  a  word,  a 
right  to  have  a  private  individual  appointed  for  the  purpose  of 
deciding  by  his  judgment  the  question  at  issue  between  him  and  his 
adversary.  This  title  to  a  judicium,  i.e.  the  actio,  rests  in  early 
times  on  lex,  or  custom  with  the  force  of  lex.  And  for  this  reason 
it  was  called  legis  actio. 

Of  legis  actiones  we  have  five  —  (1)  the  L.  A.  sacramento,  (2) 
the  L.  A.  per  judicis  postulationem,  (3)  the  L.  A.  per  condictionem, 
(4)  the  L.  A.  per  manus  injectionem,  (5)  the  L.  A.  per  pignoris 
capionem. 

I.  The  Legis  Actio  sacramento. 

The  ordinary  and  most  important  form  of  the  legis  actio  pro- 
cedure was  the  so-called  'legis  actio  sacramento.'  Both  parties, 
with  a  view  to  the  litis  contestatio,  solemnly  affirm  their  legal 
claim.  The  plaintiff  declares:  'a jo  hanc  rem  meam  esse  ex  jure 
Quiritium,'  &c.,  and  the  defendant  answers  wdth  the  same  formula. 
Thereupon  both  deposit  a  sum  by  way  of  wager,  the  so-called 
'sacramentum,'  which  amounted,  according  to  the  matter  in  dis- 
pute, either  to  50  or  500  asses,  and  which  each  party  declares  shall  be 
forfeited,  if  his  contention  proves  to  be  false.  This  wager  supplied 
the  formal  basis  for  the  judicium,  i.e.  the  formulating  of  the  issue, 
and,  when  once  entered  upon,  may  be  presumed  to  have,  at  the 
same  time,  formally  estabUshed,  as  regards  the  magistrate,  the 
right  to  a  judicium  (i.e.  the  actio).  If  a  man  challenged  another 
to  a  wager  (sacramentum)  in  reference  to  some  legal  claim  prima 
facie  possible,  he  was  thereby  enabled  not  only  to  compel  his 
opponent  to  lay  a  counter-wager,  but  also  to  require  the  magistrate 
to  appoint  a  judex.  This  legis  actio  was  thus,  in  the  truest  sense, 
a  legis  actio  sacramento,  for  the  judicial  wager  was  the  basis  both 
of  the  decision  of  the  judicium  and  of  the  formal  title  to  the 
judicium.  The  private  right  secured  its  actio  by  means  of  the 
sacramentum.^ 

1  It  is  probable  that  the  compulsory  force  of  the  sacramentum  as  against 
the  magistrate  is  based  on  the  fact  that,  originally,  it  was  not  merely 
a  matter  of  money  laid  against  monej',  but  oath  against  oath  (i.e.  sacra- 
mentum, in  the  ordinary  sense  of  the  word).     The  person  tendering  the 


672  '      PROCEDURE  [Part  IV. 

II.  Legis  Actio  per  judicis  postulationem. 

There  were,  however,  some  particular  cases  where  the  law 
annexed  to  the  existence  of  certain  facts,  facts,  namely,  constitut- 
ing contracts  and  delicts  of  a  specified  kind,  an  immediate  actio  or 
right  to  a  judicium.  There  was  no  need  to  lay  a  wager  (sacramen- 
tum)  and  incur  the  consequent  perils  of  a  law-suit.  In  order  to 
compel  the  magistrate  to  direct  a  judicium,  all  that  was  required 
was  that  the  plaintiff  should  affirm  in  jure  the  existence  of  the 
particular  facts,  whether  a  contract  or  a  delict,  and  should,  on  the 
ground  of  such  facts,  in  solemn  words  claim  to  have  a  judex  ap- 
pointed. But  it  was  indispensable  that  the  facts  of  the  case  should 
tally  precisely  with  those  indicated  by  the  verba  legis,  and  that 
therefore,  in  setting  forth  these  facts,  the  ex^ct  verba  legis  should 
be  employed.  Inasmuch  then  as,  in  these  cases,  the  application 
for  a  judex  immediately  bound  the  magistrate  to  grant  the  judicium, 
this  legis  actio  was  called  the  L.  A.  per  judicis  piistulationem.^ 

oath  pledges,  for  the  truth  of  his  oath,  either  his  own  person  (i.e.  he 
consecrates  himself  to  the  gods),  or  he  only  pledges  some  portion  of  his 
property  which  he  thereby  consecrates  to  the  gods,  which  he,  in  other 
words,  agrees  shall  be  forfeited  to  the  gods,  if  the  decision  goes  against 
him.  In  civil  proceedings,  the  latter  kind  of  oath,  where  a  man  merely 
stakes  some  portion  of  his  property  (the  'Vieh-Eid'  of  German  law),  is 
sufficient.  Even  it,  moreover,  was  enough  to  raise  a  question  which 
required  to  be  decided  by  an  objective  judgment ;  in  other  words,  was 
enough  to  deprive  the  magistrate  of  all  power  to  reserve  the  matter  for 
his  own  decision  (decretum),  and  to  compel  him  to  appoint  a  sworn  judge 
(judex),  or  a  college  of  sworn  judges  (e.g.  the  centumviri),  to  decide  it 
by  means  of  a  verdict,  or  sententia.  The  oath,  in  a  word,  establishes 
the  actio,  i.e.  the  claim  to  a  judicium.  Subsequently  the  oath  was 
dropped,  and  the  consecrated  sum.  of  money,  (saeramentum,  in  this  sense) 
alone  remained,  though,  as  a  matter  of  fact,  the  actual  depositing  was, 
in  later  times,  dispensed  with,  the  money  being  merely  promised.  Schultze 
("Priv.  R.,"  etc.  p.  455)  regards  the  saeramentum  as  a  judgment  given  by 
the  party  on  his  oath.  Of  course  it  is  a  judgment  in  the  logical  sense  of 
the  term,  but  scarcely  a  judgment  in  the  sense  of  civil  procedure,  i.e.  in 
the  sense  of  deciding  the  question  at  issue. 

1  In  my  opinion  the  'legis  actio  de  arboribus  suecisis,'  instanced  by 
Gajus,  bk.  iv.  §  11,  refers  to  this  legis  actio  per  judicis  postulationem. 
There  seems  to  be  no  doubt  that  the  original  action,  as  based  on  the 
Twelve  Tables,  really  only  lay  for  cutting  trees  and  nothing  else.  The 
extension  of  the  action  to  other  cases,  especially  to  the  case  of  vites  suc- 
cisae,  was  due  to  the  interpretatio  of  a  later  time ;  but  even  when  thus 
applied,  the  words  used  in  the  litis  contestatio  had  still  to  be  those  pre- 
scribed by  the  statute,  viz.,  'de  arboribus  suecisis.'  This  was  the  source 
of  the  formalism  of  which  Gajus  speaks.  For  it  is  of  course  out  of  the 
question  that,  in  speaking  'de  arboribus  suecisis,'  the  Twelve  Tables 
intended,  from  the  outset,  to  include  also  vites.  The  rule  then  that  an 
action  should  only  lie  de  arboribus  suecisis,  meant  originally  that  an  actio 
should  lie  on  facts  precisely  corresponding  to  the  words  of  the  statute 
and  no  other.  In  the  course  of  the  subsequent  development  this  rule, 
though  really  abandoned  by  the  admission  of  the  actio  de  vitibus  suecisis, 
was  nevertheless  maintained  by  a  fiction,  the. action  being  still  formally 
taken  de  arboribus  suecisis  only.  The  absurdities  of  the  formalism  noted 
in  Gajus  must,  therefore,  be  considered  the  result  of  a  subsequent  devel- 


Chap.  XXXI,  §  7.]        ANCIENT    ROMAN    PROCEDURE  673 

III.  Legis  Actio  per  condictionem. 

The  L.  A.  per  judicis  postulationem  had  been  designed  for  the 
enforcement  of  claims  in  personam.  Actions  for  the  enforcement 
of  such  claims  received  a  further  development  by  means  of  the 
L.  A.  per  condictionem,  which  was  first  introduced  by  the  lex  Silia 
for  the  recovery  of  a  fixed  sum  of  money  (certa  pecunia),  and  after- 
wards extended  by  the  lex  Calpurnia  to  claims  for  a  certa  res.^ 
Wherever  the  plaintiff  in  an  action  in  personam  undertook  to  fix 
his  claim  against  the  defendant  precisely  at  some  liquidated  amount 
(certam  pecuniam  dare),  or  to  specify  a  particular  object  ownership 
in  which  should  be  conveyed  to  him  (certam  rem  dare),  he  could, 
as  in  the  L.  A.  per  judicis  postulationem,  claim  from  the  magistrate 
the  immediate  appointment  of  a  judex.  This  condictio  had  its 
danger  as  well  as  its  advantage.  Its  danger  was  that  the  plaintiff, 
though  entitled  to  something,  was  nevertheless  cast  in  his  suit,  if  he 
had  not  claimed  the  precise  amount  due  to  him.  Its  advantage 
lay  in  this  that  it  applied  also  to  such  cases  the  facts  of  which  did 
not  in  themselves  entitle  a  person  to  the  judicis  postulatio ;  nay 
even  to  cases  where,  possibly,  there  was  no  indisputable  legal  claim 
at  all,  as,  for  example,  when  the  only  feature  of  the  case  was  that 
A  had  been  enriched  at  the  expense  of  B.  In  the  L.  A.  per  judicis 
postulationem  the  litis  contestatio  merely  formulated  the  facts  of 
the  case  without  in  any  way  indicating  the  nature  of  the  claim 
deduced  therefrom  (legis  actio  in  factum  concepta),  and,  conversely 
in  the  L.  A.  per  condictionem  the  litis  contestatio  merely  formu- 
lated the  legal  claim  wdthout  mentioning  the  facts  from  which  it 
was  deduced  (legis  actio  in  jus  concepta).  It  was  an  abstract  ac- 
tion where  the  concrete  facts,  on  which  the  claim  rested,  were  not 
referred  to  in  the  solemn  act  of  formulating  the  issue  (litis  con- 
testatio). 

For  cases  falling  under  this  second  legis  actio,  the  law  required 
that  the  judicis  postulatio  should  be  made  in  a  manner  dift'ering 
from  the  practice  traditionally  observed  in  the  case  of  the  L.  A. 
per  judicis  postulationem.  For  in  this  latter  action,  the  magistrate, 
in  accordance  with  ancient  usage,  appointed  the  judex  at  once. 
The  L.  A.  per  condictionem  had  this  characteristic  of  the  later 
procedure  —  a  characteristic  which  was  connected  with  the  general 
arrangements  of  a  later  period  for  the  appointment  of  judges  — 

opment.  The  legis  actio  fiduciae  supplies  another  example  of  the  L.  A. 
per  judicis  postulationem  (sup.  p.  36,  note  11).  For  further  cases,  v. 
Voigt,  "Die  zwolf  Tafeln,"  vol.  i,  p.  580  ff.  On  the  L.  A.  per  judicis 
postulationem,  cp.  A.  Schmidt,  "ZS.  der  Sav.  St."  vol.  ii.  (1881),  p.  155  ff. 
1  Gaj.  iv.  §§  18-20. 


674  PROCEDURE  [Part  IV. 

that,  instead  of  a  judex  being  appointed  at  once,  the  parties  agreed 
to  reappear  in  jure  before  the  praetor  in  thirty  days  for  the  purpose 
of  selecting  and  appointing  a  judex  (ad  judicem  capessendum) . 
The  plaintiff  at  the  same  time  gave  the  defendant  formal  notice  to 
reappear  within  thirty  days  before  the  magisterial  tribunal  for  the 
purpose  of  appointing  the  judicium.  This  notice  was  called 
'condictio,'  which  means  literally  an  'agreement'  or  'convention,' 
and  hence  the  name  legis  actio  per  condictionem.  It  is  to  be  ob- 
served, that  the  force  of  the  qualifying  words  '  per  condictionem '  is 
precisely  analogous  to  that  of  the  words  'per  judicis  postulationem' 
in  the  other  legis  actio.  In  either  case  the  plaintiff's  application 
for  a  judex  is  directly  binding  on  the  magistrate. 

IV.  Legis  Actio  per  manus  injectionem. 

In  certain  extraordinary  cases  the  actio  arises  from  a  completed 
act  of  execution,  in  the  same  way  as,  in  the  L.  A.  sacramento,  it 
arises  from  an  act  of  affirmation. 

The  normal  form  of  execution  is  judicial  execution,  i.e.  the  act 
of  laying  hands  on  one's  adversary  in  iure_in  the  presence  of  the 
magistrate  (manus  injectio).^  It  means  the  attachment  of  the 
defendant  for  the  purpose  of  making  him  the  bondsman  of  his 
creditor.  The  party  attached  is  disqualified  from  making  any 
defence  himself,  because  the  effect  of  the  manus  injectio  is  to  place 
him  ipso  juje  in  the  position  of  a  slave  (servi  loco).^  A  third 
party,  however,  may  intervene  as  a  vindex  and  counteract  the 

1  Extra-judicial  manus  injectio  is  never  a  real  act  of  execution.  It 
means  either  the  taking  possession  of  an  xiixf4:ee  ^lersion  (as,  in  Livy  iii. 
44,  Claudius  applies  the  manus  injectio  to  Vii-ginia,  with  a  view  to  taking 
her  to  his  home  as  a  slave),  or  it  is  an  act  of  summons.  If  the  defendant 
disregarded  the  in  jus  voeatio,  i.e.  the  solemn  oral  summons  addressed 
to  him  by  the  plaintiff,  the  latter  could  always  lay  hands  on  him  (manus 
injectio),  with  a  view  to  bringing  him  before  the  Court  (Twelve  Tables, 
i.  2).  In  some  cases  the  plaintiff  could  proceed  to  manus  injectio  at  once 
without  any  previous  in  jus  voeatio.  He  could  thus  arrest,  e.g.  a  judg- 
ment debtor  (judicatus),  in  order  to  take  him  before  the  praetor  for  the 
purpose  of  there  earrying  out  the  judicial  manus  injectio ;  or  again  a 
'fur  manifestus,'  or  other  person  who  had  committed  a  delict  partaking  of 
a  criminal  nature  (Demelius,  "  ZS.  fiir  RG."  vol.  i.  p.  362  ff.).  But  extra- 
judicial manus  injectio  of  this  kind,  though  it  serves  the  purpose  of  intro- 
ducing legal  proceedings,  is,  in  itself,  totally  immaterial  as  far  as  the  course 
of  procedure  itself  is  concerned  ;  it  is  always  merely  preliminary  to,  never 
productive  of,  an  action  at  law.  Judicial  manus  injectio,  and  it  alone,  can 
beget  an  action.  Thus,  though  there  are  several  forms  of  manus  injectio 
—  judicial  or  extra-judicial  manus  injectio,  and  of  the  latter  again  several 
kinds  —  there  is  nevertheless  but  one  legis  actio  per  manus  injectionem, 
that  actio  namely  which  springs  from  the  judicial  manus  injectio  or  act 
of  execution. 

2  The  fact  that  the  manus  injectio  ipso  jure  debarred  the  person  at- 
tached from  making  anj^  defence  confirms  the  supposition  that,  in  the 
early  law,  the  efficacy  of  manus  injectio  was  independent  of  any  addietio 
on  the  part  of  the  praetor  ;  cp.  Jhering,  'I'Geist  des  Rom.  R.,"  vol.  i.  p.  152. 


Chap.  XXXI,  §  7.]        AXCIEXT    ROMAN    PROCEDURE  675 

effect  of  the  'manum  injicere'  by  means  of  'manum  depellere.' 
The  maniim  depellere  operates  to  annul  the  preceding  manus 
injectio,  in  other  words,  the  debtor  is  free  once  more  and  cannot  be 
attached  again  for  the  same  cause.  But,  on  the  other  hand,  the 
vindex  is  now  bound  to  indemnify  the  creditor  whose  act  of  execu- 
tion he  has  nullified.  He  must  give  immediate  satisfaction  for  the 
debt  to  recover  which  manus  injectio  had  been  resorted  to.  If, 
however,  he  refuses  to  pay  the  debt  on  the  ground  that  he  challenges 
the  legality  of  the  manus  injectio,  the  law-suit  commences  and  the 
vindex,  if  defeated,  is  cast  in  double  damages.  The  suit  has  to 
be  decided  b}'  the  ordinary  procedure,  a  judex  being  appointed  for 
the  purpose.  It  is  in  this  sense  that  manus  injectio  begets  an 
actio,  xiz.  the  L.  A.  per  manus  injectionem.  Judicial  manus  in- 
jectio {i.e.  the  act  of  execution)  implies  a  right  to  have  any  issue 
that  may  arise  in  the  event  of  the  claim  being  contested,  tried  by  a 
judicium. 

Judicial  manus  injectio  can  only  be  used  in  the  case  of  a  liqui- 
dated money  claim.  The  regular  instance  of  this  kind  is  the 
judgment-debt,  i.e.  a  fixed  sum  which  a  person  has  been  condemned 
to  pay  by  the  sententia  of  a  sworn  judge  ('in  judicio')-  An  'aeris 
confessus,'  i.e.  a  person  who  had  admitted  a  money-debt  in  jure 
before  the  magistrate,  was  regarded  as  occupying  the  same  position 
as  a  judgment-debtor,  and  was  thus  liable  to  'manus  injectio  pro 
judicato.'  It  is  probable  that  originally  a  debt  incurred  by  nexum, 
i.e.  the  formal  obligation  of  the  early  civil  law  was  treated  in  the 
same  way  as  a  judgment-debt.  Se^•eral  later  statutes  assimilated 
other  debts  to  judgment-debts,  the  harsh  effects  of  the  manus 
injectio,  however,  being  in  most  cases  mitigated  in  such  a  manner 
as  to  allow  the  debtor  to  be  his  own  vindex,  to  'manum  sibi  de- 
pellere' himself,  so  that  he  (the  debtor)  became  the  defendant  in 
the  resulting  action,  if  any,  and  was  himself  liable  in  duplum  in 
case  of  condemnation.  Thus  there  were  two  species  of  this  form 
of  actio,  firstly,  the  L.  A.  per  manus  injectionem  pro  judicato 
(where  the  debtor  could  only  defend  himself  through  a  vindex),  and, 
secondly,  the  L.  A.  per  manus  injectionem  pura  (where  the  debtor 
might  defend  himself  in  person).  But  in  any  case  the  manus 
injectio  which  had  been  carried  out  in  jure  remained  the  formal 
subject  of  the  law-suit  as  well  as  of  the  decision,  because  in  point  of 
form  the  actio  (i.e.  the  claim  to  a  judicium)  did  not  spring  directly 
from  the  private  law,  but  from  the  manus  injectio. 

V.  Legis  Actio  per  pignoris  capionem. 

Pignoris  capio  is  a  process  akin  to  manus  injectio.     The  law 


6/6  PROCEDURE  '-e^  y^         [Part  IV. 

invested  debts  of  a  particular  kind  with  special  privileges  by  allow- 
ing the  creditor  to  obtain  satisfaction  for  them  by  an  e::tra-judicial 
seizure  of  portions  of  the  debtor's  property.  Every  such  author- 
ized pignoris  capio  was  characterized  by  the  use  of  certain  pre- 
scribed words  (certa  verba)  which  had  to  accompany  its  execution. 
The  distrainee  was  bound  to  redeem  the  property  seized  within  a 
prescribed  interval,  with  the  addition,  probably,  of  a  penalty ;  in 
default  of  which  we  may  presume  that  the  ownership  in  the  goods 
distrained  passed  to  the  distrainor.  The  latter  generally  exercised 
his  right  of  ownership  by  destroying  the  things  (pignora  caedere), 
because  the  primary  object  of  the  distraint  was  not  to  satisfy  the 
creditor,  but  to  punish  the  refractory  debtor. 

The  distrainee  must  have  had  the  right,  in  some  form  or  other 
^  of  protesting  before  the  magistrate  in  jure  against  the  distraint 
which  had  taken  place.  Just  as,  in  the  preceding  instances,  the 
proffering  of  an  oath  (sacramentum)  by  one  party,  compelled  the 
other  to  tender  a  counter-oath,  and  the  manum  injicere  by  one 
compelled  the  other  to  manum  depellere,  so  here  the  pignoris  capio 
compelled  the  distrainee,  if  he  wished  to  make  any  defence,  to 
enter  a  protest.  Here,  then,  was  another  special  issue  which  the 
magistrate  had  no  power  to  reserve  for  his  own  decision,  but  was 
bound  to  send  for  trial  before  a  judex.  It  was  in  this  way  that 
pignoris  capio  begot  an  action,  mz.  the  L.  A.  per  pignoris 
capionem. 

The  cases  in  which  pignoris  capio  was  available,  were  not,  as  far 
as  we  can  see,  sufficient  in  themselves  to  give  rise  to  ordinary  civil 
proceedings.  They  were  partly  claims  of  a  public  nature,  e.g.  a 
soldier's  claim  for  his  pay,  for  mone}'  to  buy  a  horse,  or  for  barley  to 
feed  his  horse,  or  again  the  claims  of  farmers  of  the  public  revenue 
for  arrears  of  taxes  due  to  the  state;  partly  they  were  cases  of 
a  private  law  liability,  which  we  may  describe  as  not  having  given 
rise  to  any  legal  obligation  in  the  early  times.  Thus  if  a  victim 
had  been  sold  for  sacrificial  purposes  b}^  means  of  an  informal 
contract  of  sale,  or  again,  if  a  beast  of  burden  had  been  let  out 
under  an  informal  contract  of  letting  with  a  view  to  investing  the 
consideration  money  in  the  purchase  of  a  lamb  to  sacrifice  to  Jupiter, 
the  guardian  deity  of  harvests  —  in  neither  case  did  the  purchaser 
or  hirer  respectively  incur  any  legal  liability.  It  is  possible  also 
that  pignoris  capio  was  resorted  to  in  the  case  of  '  damnum  infec- 
tum ' ;  that  is  to  say,  where  a  man's  property  was  in  danger  of  being 
injured,  though  not  yet  actually  injured,  by  the  state  of  his  neigh- 
bour's property  {e.g.  by  the  dilapidated  condition  of  his  house),  he 


Chap.  XXXI,  §  7]       ANCIENT   ROMAN   PROCEDURE       '  677 

was  perhajDs  allowed  to  seize  some  of  the  neighbour's  land  by  way 
of  pignoris  capio. 

In  none  of  these  cases  was  there  any  action  at  law.  Xor  was  the 
legis  actio  sacramento  available,  because  the  sacramentum  had  to 
aflSrm  a  dare  or  facere  oportere,  in  other  words,  the  existence  of 
a  liability  full}'  enforceable  at  civil  law.  But  by  the  circuitous 
method  of  pignoris  capio  the  creditor's  claim  was  either  satisfied  in 
such  a  wa}'  as  to  put  a  penalty  on  the  distrainee,  if  he  submitted  to 
the  pignoris  capio,  or  else  was  brought  to  trial  (actio),  if  he  (the 
distrainee)  protested. 

The  right  of  pignoris  capio  was  said  to  have  'instar  actionis,' 
i.e.  to  grant  a  right  of  distraint  was  virtually  to  grant  a  right  of 
action. 

VI.  Recapitulation. 

To  sum  up.  Private  law  grants  a  legis  actio  either  directly  (L.  A. 
per  judicis  postulationem,  per  condictionem),  or  indirectly.  The 
means  by  which  a  private  right,  which  is  not  directh'  enforceable 
by  the  ordinary  civil  procedure,  can  nevertheless  secure  a  trial  or 
actio,  are  either  a  solemn  affirmation  (sacramentum)  or  a  solemn 
act  of  execution,  vvhich  latter  can  be  either  personal  (manus 
injectio)  or  real  (pignoris  capio). 

The  legis  actio  sacramento  is  the  general  form  of  action ;  the 
remaining  legis  actiones  are  restricted  to  such  cases  as  are  deter- 
mined by  statute  (lex)  or  ancient  custom  with  statutory  force. 

These  special  legis  actiones  are,  each  and  all,  modes  of  enforcing 
obligatory  rights ;  in  other  words,  they  are  forms  of  so-called  '  per- 
sonal' actions.  Thus  we  have  an  abundance  of  actions  whose 
object  it  is  to  protect  the  rights  of  creditors.  A  creditor,  however, 
may  also  proceed  by  legis  actio  sacramento,  not  only  when  his 
claim  is  for  a  'certum,'  but  also  where  it  is  for  an  'incertum  '  {e.g. 
pro  fure  damnum  decidere  oportere),  provided  only  the  existence 
of  his  claim  was  disputed,  and  the  peculiar  form  of  trial  by  wager, 
which  required  two  mutually  exclusive  allegations,  thereby 
became  practically  applicable.  But  whenever  the  claim  was  not 
personal,  but  real,  i.e.  whenever  it  sprang  from  some  relation  of 
power,  whether  a  power  over  things  (ownership,  inheritance,  servi- 
tude) or  over  persons  (marital,  paternal,  tutelary  power),  in  all 
such  cases  the  legis  actio  sacramento  was  the  sole  form  available. 
Having  seized  the  object  in  dispute,^  both  parties  had  solemnly  to 

1  Corresponding  to  the  'anefang'  in  the  German  form  of  vindieatio. 
Cp.  Gajus,  iv.  16.  The  seizing  of  the  object  was  coupled  with  the  cere- 
mony of  festucam  imponere,  the  staff  being  the  symbol  of  power. 


678  .  PROCEDURE  [Part  IV. 

affirm  their  title  to  it  sacramento  (vindicatio  and  contravindicatio).^ 
In  this  way  the  litis  contestatio  was  arrived  at  and  the  foundation 
for  the  judicium  laid.  Pending  the  judicium,  the  praetor,  acting 
on  his  own  discretion,  regulated  the  interim  possession  (vindicias 
dare). 

We  have  thus,  on  the  one  hand,  only  one  form  for  actions  of 
ownership,  in  fact,  only  one  form  for  real  actions  of  any  kind ;  on 
the  other,  a  profusion  of  actions  for  the  enforcement  of  obligations. 
From  the  very  outset  the  productive  genius  of  the  Roman  law  of 
procedure,  like  that  of  other  departments  of  Roman  law,  character- 
istically exhibits  itself  within  the  sphere  of  the  law  of  obligations.^ 

3.  The  Formulary  Procedure 

The  solemn  act  by  which  the  parties  themselves,  at  the  con- 
clusion of  the  proceedings  in  jure,  formulate  the  legal  issue  (litis 
contestatio),  constitutes  the  pith  and  climax  of  the  legis  actio  pro- 

1  The  sacramento  provoeare,  i.e.  the  affirming  of  one's  own  word,  in- 
volved the  impeachment  of  the  other  party's  word  (injuria  vindicavisti), 
which  Avas  thereby,  legally  speaking,  annulled,  the  party  himself  being 
thus  compelled  to  make  his  reply  by  means  of  a  counter-saeramentum. 
(Compare  the  precisely  similar  effect  which  resulted  in  German  law  from 
the  fact  that  one  party,  by  his  deed  or  oath,  impeached  the  deed  or  oath 
of  his  adversary.) 

2  From  an  historical  point  of  view,  the  legis  actiones  are  diAaded  into 
two  groups,  those  of  an  older  and  those  of  a  later  type.  The  legis  actiones 
of  the  first  group,  which  are  antique  in  character,  are  marked  by  the 
prominence  in  their  procedure  of  the  element  of  private  force,  which  is  the 
source  and  fountain-head  of  all  actions  whatever.  To  this  class  belong 
the  L.  A.  per  manus  injectionem  and  the  L!  A.  per  pignoris  capionem. 
The  ancient  civil  procedure  both  of  the  Romans  and  Germans  is  nothing 
more  than  a  form  of  self-help  sanctioned  by  the  law.  And  even  the 
vindicatio  sacramento  bears  clear  traces  of  a  similar  character.  In  the 
proceedings  in  jure  both  parties  are  seen  exercising  force ;  they  are  strug- 
gling for  the  possession  of  the  object  in  dispute,  they  both  lay  hands  on  it. 
At  this  moment  the  judge  steps  in  and  commands  peace :  mittite  ambo 
hominem !  Both  parties  must  let  go  the  object  {e.g.  the  slave  who  is 
'vindicated').  The  judge  alone  has  now  power  to  deal  -with  it;  he  is 
free  to  act  as  he  pleases  in  awarding  possession  (vindicias  dare).  A  wager 
is  then  laid  with  regard  to  the  preceding  act  of  force,  and  the  judge  is 
required  to  decide  which  of  the  parties  was  acting  in  the  exercise  of  legiti- 
mate force,  of  justifiable  self-help.  The  second  gi'oup  of  actiones,  on  the 
other  hand,  the  L.  A.  per  judicis  postulationem  and  the  L.  A.  per  con- 
dietionem,  bear  the  impress  of  a  later  age.  Everything  is  done  peace- 
fully. The  parties  merely  ask  to  have  a  judex.  The  action  is  no  longer 
a  mere  disguise  thinly  veiling  what  is  really  a  bold  exercise  of  self-help ; 
the  state  itself  dominates  the  legal  system  and  the  execution  of  the  law, 
and  the  whole  proceedings  in  jure  merely  represent  an  application  by  the 
parties  for  judicial  proceedings.  Cii.  Bekker,  "Actionen,"  vol.  i.  p.  18  ff. 
and  Bechmann's  recent  "Studie  im  Gebiet  der  legis  actio  saeramenti" 
("Festschrift  f.  Windscheid"),  1888;  Gradewitz,  " Zwangsvollstreckung  u. 
Urteilssicherung"  ("Berliner  Festsclu-ift  f.  Gneist "),  1888;  Matthiass, 
"Die  Entwickelung  des  romischen  Sehiedsgerichts "  ("  Rostocker  Festgabe 
f.  Windscheid"),  1888,  pp.  5-18. 


Chap.  XXXI,  §  7.]        A^X'IENT    ROMAN    PROCEDURE  679 

cedure  which  we  have  just  described.  The  oral  formula  of  the 
parties,  framed  in  strict  adherence  to,  and  operating  by  virtue  of, 
the  letter  of  the  law,  begets  the  'actio,'  i.e.  the  concrete,  formal 
right  to  a  judicium,  and,  at  the  same  time,  supplies  the  foundation 
upon  which  the  judicium  proceeds. 

This  solemn  act  of  procedure  cannot  be  repeated.^  It  necessarily 
follows,  therefore,  in  the  first  instance,  that  the  solemn  litis  con- 
testatio  of  the  legis  actio  procedure  operates  ipso  jure  to  destroy 
the  right  of  action.  That  is  to  say,  in  the  same  moment  when  the 
litis  contestatio  gives  birth  to  the  actio. in  the  formal  sense  of  the 
term  (i.e.  to  the  right  to  claim  a  judex  for  the  dispute  in  question), 
in  the  very  same  moment  the  actio  in  its  material  sense  {i.e.  the 
right  to  the  litis  contestatio)  is  annihilated.  The  litis  contestatio 
can  only  be  carried  out  once  and  no  more.  Its  effect  is  to  consume 
the  rig^t  of  action. 

It  follows,  moreover,  in  the  second  pl^ace,  from  the  same  rule  that, 
if  a  mistake  has  been  made  in  the  formula,  there  is  no  way  of 
correcting  it  and  saying  the  formula  over  again  in  an  amended 
form.  A  faulty  formula  entails  the  loss  of  the  action,  for  the  oral 
formula  admits  neither  of  repetition  nor  amendment.  The  reason 
why  the  use  of  the  formula  is  attended  with  the  risks  incident  to  an 
action  is  because  it  is  itself  an  act  which  operates  to  consume  a 
right  of  action. 

It  was  however  ine\'itable  that  the  oral  formula  shoiJd  soon 
prove  inadequate  for  the  purpose  for  which  it  was  designed,  the 
purpose  namely  of  formjulating  the  dispute  for  the  decision  of  the 
judex.     The  oral  formulae  were  immutable,  because  the  wording  of 
the  statutes  on  which  they  were  founded  was  immutable.     But  the 
law  which  was  developing  on  the  basis  of  these  words  was  none 
the  less  changeable.     True,  the  letter  of  the  law  frequently  received, 
in  practice,  a  sufficiently  liberal  interpretation.     On  the  strength  of   ^^,,, 
a  section  of  the  Twelve  Tables  dealing  '  de  arboiibii^  succisis/  tlig^"^"^ 
practice  of  the  courts  subsequently  admitted  an  action  'de  vitibus/^*^^ 
succisis.'      But  the  wording  of  the  Twelve  Tables,  and   conse- 
cjuently  also  the  wording  of  the  spoken  formula,  remained  the  same. 
The  vrords  of  the  litis  contestatio  had  to  be  de  arboribus  succisis, 
even  when,  as  a  matter  of  fact,  the  plaintiff"  intended  to  sue  de 

^  Precisely  the  same  idea  is  to  be  found  in  the  old  German  procedure 
where  the  rule  '  a  man  a  word'  was  applied,  i.e.  every  man  has  only  one 
word  which,  once  uttered,  can  neither  be  retracted  nor  repeated  nor 
amended.  I  might  suggest  that  this  rule,  itself  an  expression  of  the  for- 
malism which  dominates  all  early  procedure,  supplies  the  desired  explana- 
tion (v.  Wlassak,  "Litis  cont.,"  p.  57,  note  1)  of  the  'consuming'  effect 
incident  to  the  old  solemn  act  of  litis  contestatio. 


CSO  PROCEDURE  [Paht  IV. 

vitibus  succisis.  But  how  was  the  judex  to  find  out  the  real  mean- 
ing of  the  parties  from  a  Htis  contestatio  framed  in  that  manner? 
The  result,  inevitable  in  such  circumstances,  was,  that  the  litis 
contestatio  became  a  mere  mask  for  covering  a  variety  of  cases  of 
a  widely  different  character.  Thus  it  happened,  often  enough, 
that  the  formulating  of  the  legal  issue,  as  carried  out  in  the  litis 
contestatio  was  a  mere  pretence.  In  order  therefore  to  pierce  the 
mask  and  discover  the  true  nature  of  the  issue  before  him,  the 
judge  had  to  resort  to  other  expedients. 

To  all  this  must  be  added  one  other  circumstance.  The  legis 
actio  procedure  was,  so  to  speak,  cut  down  and  restricted  to  a 
definite  number  of  statutable  claims.  It  was  a  difficult  matter  (as 
we  see  in  the  case  of  the  arbores  and  vites)  to  force  a  new  law  into 
the  old  moulds.  But  from  about  the  middle  of  the  third  century 
B.C.  onwards,  as  the  inroads  of  the  jus  gentium  became  stronger 
and  stronger,  a  large  number  of  fresh  claims  arose,  such  as  the 
bonae  fidei  judicia,  the  claims  on  informal  sales,  letting  and  hiring, 
and  others,  not  based  on,  nor  recognized  by,  any  Roman  statute, 
and  lacking  therefore  the  necessary  credentials  without  which  the 
procedure  by  legis  actio  remained  closed  to  them.  A  new  law  for 
which  there  was  no  room  within  the  narrow  confines  of  the  old 
legis  actio  was  pushing  its  way  into  the  Roman  sj'stem.  New  skins 
were  needed  for  the  new  wine. 

And  so  it  happened  that  at  the  same  time  when  the  forms  of  legal 
redress  supplied  by  the  legis  actio  began  to  fall  short  of  the  material 
requirements  of  the  law,  the  necessity  for  a  reform  in  Roman  civil 
procedure  (the  legis  actio  procedure)  became  more  pronounced. 

It  is  characteristic  of  the  tendency  which  marks  the  development 
r>f  "RrmTaj]^  law  fliflt  a  rpmprly  by  means  ot  legislative  enactment 
wasnot^resorted  to.  It  was  time  enough  to  invoke  the  interference" 
of  soTiielastic  an  agency,  when  the  aim  and  method  of  the  desired 
reform  had  been  clearly  ascertained.  Meanwhile  the  judicature 
was  left  to  its  own  resources.     The  task  of  reforming  RomaA  law 

The  praetor  was  enabled  to  act  the  part  of  a  reformer  by  means 
of  his  imperium,  i.e.  by  means  of  that  regal  power  —  formally 
unrestricted  and  subject  only  to  the  intercession  of  a  magistrate 
of  equal  or  superior  authority  —  which  he  wielded  during  his 
year  of  office.  It  was  in  the  exercise  of  his  imperium  that  he 
appointed  a  private  person  judex,  i.e.  compelled  him  by  his  order 
to  decide  a  legal  dispute.  Where  the  conditions  of  a  legis  actio 
existed,  the  praetor  appointed  the  judex  in  accordance  with  the 


Chap.  XXXI,  §  7.]        ANCIENT    ROHAN    PROCEDURE  GSl 

law,  and  in  such  cases  the  plaintiff  had  even  a  statutory  right  to 
the  appointment.  But  the  praetor  had  also  the  power  to  appoint 
a  judex  apart  from  the  law,  'sine  lege,'  ^  simply  in  virtue  of  his 
sovereign  imperative  power  (judicium  imperio  continens).  And 
this  power  he  exercised  in  all  those  cases  where  there  was  no  legis 
actio,  no  statutable  claim,  but  where  the  claim  preferred  was, 
nevertheless,  such  as  to  be,  in  his  opinion,  deserving  of  legal  pro- 
tection. The  praetor,  taking  the  responsibility  on  his  own  official 
authorit}^,  ordered  the  appointed  judex,  under  certain  conditions, 
to  condemn  or  acquit,  as  the  case  might  be.  And  since,  in  such 
cases,  a  legis  actio,  a  formulating  of  the  issue  by  solemn  act  of  the 
parties,  was  quite  foreign  to  the  matter  in  hand,  the  task  of  formu- 
lating the  issue,  and  in  this  respect  of  fulfilling  the  functions  of  the 
legis  actio,  was  performed  by  the  praetor  himself  in  the  written 
decree  which  he  drew  up  in  appointing  the  judex.  This  decree 
was  called  'formula,'  because  it  soon  became  the  practice  to  frame 
it  after  the  model  of  certain  'forms'  or  'formulae'  set  out  in  the 
praetorian  album.  Thus  two  different  kinds  of  procedure  came  to 
be  opposed  to  one  another :  the  legis  actio  procedure  and  the 
formulary  procedure,  the  essence  of  the  latter  being  that,  under 
it,  the  issue  was  formulated  for  the  judex,  and  the  groundwork  and 
purpose  of  his  functions  as  a  judex  were  marked  out,  not  by  the 
legis  actio  {i.e.  by  the  oral  formula  delivered  by  the  parties),  but 
by  the  decree  of  appointment  {i.e.  by  the  written  formula  delivered 
by  the  magistrate). 

Of  course  the  praetor  would  not  use  his  imperium  in  this  fashion 
unless,  and  as  far  as,  there  was  occasion  for  him  to  do  so,  i.e. 
only  where  the  exigencies  of  legal  progress  drove  him  to  such  a 
course.  And  tliis  was  precisely  what  occurred  when  the  recognition 
of  the  ju^  gentium  became  a  matter  of  imperative  necessity.  At 
the  outset  the  formulary  procedure  was  nothing  more  than  a  new 
form  of  procedure  according  to  the  jus  honorarium,  and  was  de- 
signed above  all  things  to  supply  a  method  h\  which  claims  resting 
on  the  jus  gentium  could  be  realized.  In  this  way  the  jus  hono- 
rarium aiid  the  jus  gentium,  mutually  cooperating  with  one  an- 
other, advanced,  as  it  were,  hand  in  hand. 

If  this  view  of  the  case  be  correct,  it  may  be  presumed  that  the 
praetor  peregrinus  was  the  first  to  find  occasion  to  proceed  by 
means  of  the  formulary  procedure.     Whenever  a  peregrinus  pos- 

1  Cp.  Cicero,  "de  Off."  iii.  15,  61 :  sine  lege  judicia,  in  quibus  additur 
e.x  fide  bona  ;  *'pro  Q.  Roscio,"  v.  15  :  arbitria  honoraria ;  "proFIaeco," 
21,  50:  judicium  leqe  non  erat  {Scil.  in  the  pi'ovince).  Cp.  Eisele,  "Ab- 
handluugen,"  pp.  88,  17. 


682  PROCEDURE  [Part  IV. 

sessed  the  Roman  jus  commercii,  he  stood  under  no  disabiUty 
either  in  regard  to  Roman  private  law  or  in  regard  to  the  Roman 
law  of  procedure,  and  in  such  cases  therefore  there  was  nothing  to 
prevent  the  use  of  the  legis  actio  even  in  the  court  of  the  praetor 
peregrinus.  But  the  establishment  of  the  foreign  praetorship 
coincides  precisely  with  the  time  when,  as  a  matter  of  fact,  the  jus 
gentium  had  already  become  the  law  properly  applicable  to  tl 
"great  majority  of  aliens. 2__The  legis  actio,  however,  was  juris  civilis, 
not  juris  gentium.  A  new  form  of  procedure  was  thus  urgently 
demanded  by  the  requirements  of  such  non-privileged  aliens.  It 
was  to  satisfy  this  want  that  the  formulary  procedure  was  emplo\^eiLl  i 

But  in  the  court  of  the  praetor  urbanus  the  development  of-iile" 
law  was  rapidly  leading  to  an  identical  result.  His  jurisdiction 
was  confined  to  cases  where^botlj  parties  were  RomaiL  citizens. 
But  Roman  citizens  as  well  as  aliens  acknowledged  tlie  jus  gen- 
tium, and  the  existence  of  legal  liabilities  arising  from  sale,  hire,  and 
other  such  transactions.  Thus  exactly  the  same  agencies  were  at 
work  pressing  the  praetor  urbanus  to  develop  the  formulary  in 
addition  to  the  legis  actio  procedure.  Whenever  the  claim  which  it 
was  sought  to  enforce  in  his  court  admitted  of  legis  actio,  the  legis 
actio  procedure  appliedj  in  all  other  cases  the  formulary  procedure 
was  resorted  to. 

There  is,  however,  no  doubt  that  the  formulary  procedure 
steadily  gained  ground,  and  soon  even  began  to  dislodge  the  older 
procedure  from  its  own  peculiar  domain.  In  the  first  instance  the 
formulary  procedure  had  only  been  resorted  to  juris  civilis  sup- 
plendi  gratia,  but  it  was  not  long  before  it  proceeded  a  step  further 
and  boldly  asserted  its  power  to  correct  the  civil  or  legis  actio  pro- 
cedure. We  have  already  pointed  out  that  in  many  instances  the 
mode  in  which  the  issue  was  formulated  in  the  legis  actio  was 
inadequate  and  in  no  way  indicative  of  the  real  facts  of  the  case. 
In  addition  to  this,  the  legis  actio  never  got  beyond  an  oral  joinder 
of  issue.  And  yet  a  single  mistake  in  a  single  word  entailed  the  loss 
of  the  w;Jiole  suit.  It  is  most  probable  that  in  a  great  many  cases 
the  evidence  supplied  by  the  mere  statements  of  witnesses  in  regard 
to  the  words  spoken  in  jure  was  felt  to  be  obviously  inadequate. 
All  such  inconveniences  would  be  obviated,  if  the  formula,  the  force 
and  value  of  which  the  people  had  not  been  slow  to  appreciate, 
were  used  even  in  cases  which,  in  themselves,  admitted  of  the 
procedure  by  legis  actio.  The  legis  actio  of  the  parties  was  tied  to 
the  verba  legis  and  was  thereby,  in  many  cases,  reduced  to  absolute 
unreality  and  hollowness..    The  magisterial  formula,  on  the  other 


Chap.  XXXI,  §  7.]        ANCIENT    ROMAN    PROCEDURE  683 

hand,  was  unfettered ;  it  contained  the  real  matter  at  issue  and 
not  a  mere  empty  form  beneath  which  the  truth  lay  concealed. 
Accordingly,  whenever  the  praetor  addressed  a  icritten  order  to  the 
judex,  there  could  be  no  doubt  whatever,  as  far  as  the  judex  was 
concerned,  as  to  the  precise  question  upon  which  liis  verdict  was 
required,  and  all  the  risks  attending  the  use  of  a  wrong  word  were, 
at  the  same  time,  avoided.  Thus  even  where  the  procedure  by 
legis  actio  was  really  available,  there  were  sound  practical  reasons 
why  the  praetor  should  exercise  his  right  to  nominate  a  judge  with 
a  view  to  binding  his  nominee  to  act  on  the  instructions  (on  the 
formula,  namely)  which  he  (the  praetor)  gave  him. 

Whether  in  such  circumstances  the  formula  and  legis  actio  were 
used  concurrently,  or,  as  is  more  probable,  the  formula  was  sub- 
stituted for  the  legis  actio,  in  either  case  there  was  a  distinct  conflict 
between  the  civil  law  (which  required  legis  actio)  and  the  praeto- 
rian law  (which  gave  the  formula),  a  conflict,  the  sharpness  of  which 
must  have  been  all  the  more  noticeable,  because  at  that  time  the 
praetorian  power  was  as  yet  in  the  earliest  stages  of  its  development, 
and  the  legis  actio  was  associated  with  the  powerful  influence  of 
the  pontifices.  It  was  the  pontifices  who  created,  developed  and 
interpreted  the  legis  actio.  To  assail  the  legis  actio  was  to  assail 
the  influence  which  the  pontifical  jurisprudence  exercised  over  civil 
procedure  and  consequently  over  the  interpretation  of  the  civil 
law  itself.  By  giving  preference  to  the  formula,  the  praetor  thus 
came  into  collision  with  that  influential  college  which  till  then  had 
been  the  sole  depositary  of  the  civil  law.  It  was  at  this  moment 
that  interference  by  legislative  enactment  became  necessary. 

The  popular  enactment  which  struck  in  at  this  point  was  the 
lex  Aebutia  (about  150  B.C.).  Two  other  laws  (the  leges  Juliae) 
followed  at  a  later  date,  probably  not  till  Augustus.  The  lex 
Aebutia  was  confined  to  legal  proceedings  before  the  praetor 
urbanus,  i.e.  to  those  cases  where  a  judicium  was  appointed  to  try 
a  cause  between  Roman  citizens  within  the  first  milestone  from 
Rome,  in  short,  to  those  very  proceedings  to  which  the  legis  actio 
was  most  strictly  applicable.  It  provided  that  a  judicium  could 
be  instituted  in  the  city  court  {i.e.  in  the  court  of  the  praetor 
urbanus)  2cithout  legis  actio,  merel}'  by  means  of  the  formula  or 
praetorian  decree  of  appointment.  The  great  controversj'^  was 
thereby  settled.  Within  the  court  of  the  praetor  urbanus  the 
formulary  procedure  had  been  declared  a  civil  laic  modus  agendi. 
Formula  and  le^is  actio  were  thus,  as  far  as  the  civil  law  was 
concerned,  placed  on  a  footing  of  equality.     In  the  city  court  the 


684  PROCEDURE  [Part  IV. 

formulary  procedure  was  now  likewise  a  procedure  *ex  lege,'  and 
the  judicium,  which  the  praetor  urbanus  directed  by  means  of  his 
formula  only,  was  now  converted  into  a  judicium  legitimum. 
Henceforth  the  term  judicia  imperio  continentia  (judicia  quae 
imperio  continentur)  was  applied  exclusively  to  the  judicia  ap- 
pointed by  the  praetor  peregrinus  or  to  those  which  were  held  out- 
side Rome.  With  regard  to  these  no  change  cf  procedure  took 
place.  The  magisterial  imperium  did  not  need  any  assistance 
from  popular  legislation,  because  its  authority  in  these  courts  was 
unquestioned.  The  city  court  of  the  praetor  urbanus,  on  the  other 
hand,  was,  so  to  speak,  the  stronghold  of  the  civil  law  and  the  legis 
actio,  that  peculiarly  Roman  form  of  civil  procedure.  The  power 
of  the  praetor  urbanus  was,  in  truth,  unequal  to  the  task  of  ousting 
the  legis  actio  from  its  strongest  position.  The  assistance  of  the 
legislature  was  needed,  and  the  method  emploj'ed  was  to  depreciate 
the  legis  actio  —  at  once  the  product,  and  the  source  of  power  of, 
the  pontifical  jurisprudence  —  by  investing  the  formula,  for  pur- 
poses of  the  city  court,  with  a  legal  character*  Thus  the  formulary 
procedure  became  legally  available  even  in  civil  law  causes.  The 
legis  actio  procedure  was  not  yet  actually  abolished.  An  option 
was  left  to  the  parties  whether  they  would  proceed  by  legis  actio 
after  the  old  fashion,  or  would  avail  themselves  of  the  formula 
after  the  new  method.  The  formula  had,  however,  secured  free 
scope  for  itself.  It  had  now  an  opportunity  of  putting  forth 
all  its  inherent  capabilities.  And  in  the  competition  between 
the  two  forms  of  procedure,  there  was,  from  the  outset,  no  doubt 
which  would  win.  In  the  legis  actio  procedure  the  formulating  of 
the  issue  was  an  act  full  of  pitfalls  for  the  parties,  inelastic  and  rig- 
idly formal ;  in  the  formulary  procedure  the  same  act,  stripped  as 
it  was  of  all  the  old  formalism,  had  acquired  glaalicitx^  a  capability 
of  indefinite  expansion,  and  a  ready  adimtabijjtv  to  claims  of  all 
kinds.  Everything,  in  short,  was  in  favour  of  the  formula.  The 
natural  result  was  that,  in  the  practice  of  the  courts,  the  formulary 
procedure  came,  by  universal  consent,  to  be  substituted  for  the 
legis  actio  procedure  in  the  vast  majority  of  cases.  The  culminat- 
ing point  w^as  marked  by  the  two  leges  Juliae  which,  like  the  lex 
Aebutia,  were  concerned  with  the  procedure  of  the  court  of  the 
praetor  urbanus,  and  provided  that  henceforth  the  appointment  of 
sworn  judges  should  only  be  effected  by  means  of  a  formula,  and 
not  on  the  ground  of  a  preceding  legis  actio.  The  effect  was, 
practically,  and  with  a  few  exceptions  presently  to  be  mentioned, 
to  abolish  the  legis  actio.     The  formulary  procedure  had  now 


Chap.  XXXI,  §  7.]        AXCIEXT    ROMAN   PROCEDURE  685 

become  the  civil  procedure  of  Roman  law.  The  object  of  the 
proceedings  in  jure  had  been  definitely  changed,  the  place  of  the 
old  litis  contestatio  being  taken  by  the  grant  of  the  formula,  which 
now  constituted  the  principal  and  also  the  concluding  act  of  these 
proceedings.  Henceforth  it  was  the  question  contained  in  the 
formula  and  no  other  which  the  judex  was  required  to  decide  in 
judicio. 

The  so-called  'introduction'  of  the  formulary  procedure  by 
means  of  the  above-mentioned  enactments  was,  if  our  view  be  the 
true  one,  a  process  of  the  kind  we  have  just  detailed.  It  was  not, 
as  we  see,  a  sudden  reform,  a  revolution,  but  merely  the  consum- 
mation of  what  had  been  gradually  preparing  itself.  These  laws 
were  not  the  first  to  introduce  the  magisterial  formula ;  what  they 
did  was  merely  to  emphasize  the  final  victory  of  this  formula  over 
the  oral  formula  of  the  parties,  which  had  long  existed  side  by  side 
with  it,  a  victory  which  itself  was  due  to  the  logical  necessities  of 
the  progressive  evolution  of  the  law. 

There  are  two  further  facts  which  tend  to  corroborate  and,  at  the 
same  time,  to  illustrate  our  view  of  the  character  of  that  develop- 
ment of  the  formulary  procedure  which  we  have  just  endeavoured 
to  render  plausible. 

The  first  of  these  facts  is  this,  that  whenever  an  action  was  to  be 
decided  in  judicio  by  the  judges  of  the  so-called  'centumviral  court,' 
a  magisterial  formula  was  not  used,  the  proceedings  being  con- 
ducted in  accordance  with  the  forms  of  the  ancient  legis  actio  pro- 
cedure (L.  A.  Sacramento)  —  a  practice  which  continued  without 
break  throughout  the  whole  classical  period  of  the  empire  at  least  as 
late  as  Diocletian.  Actions  concerning  inheritances  therefore, 
which  in  later  times  were  certainly  the  most  important  subject- 
matter  for  the  jurisdiction  of  the  centumviral  court,  were  still  con- 
ducted according  to  the  old  traditional  forms  of  the  legis  actio 
Sacramento.  And  the  reason  was  simply  this,  that  the  centumviral 
court  already  constituted  a  standing  college  of  judges  which  did 
not  require  to  be  called  into  existence  in  each  separate  instance  by 
the  written  decree  of  the  praetor.  In  such  cases  there  was  accord- 
ingly no  possibility  of  instituting  a  judicium,  because  a  competent 
judicium,  riz.  the  centumviral  judicium,  was  already  forthcom- 
ing. And  inasmuch  as  this  judicium  was  not  called  into  existence 
by  the  decree  of  appointment  (the  imperium),  the  praetor  was  un- 
able to  bind  the  centumviri  by  instructions  as  to  the  conditions 
under  which  they  were  to  condemn  or  acquit  respecti\ely.  The 
absence  of  the  praetorian  decree  of  appointment  thus  explains 


686  PROCEDURE  [Part  IV. 

everything ;  it  explains  why,  in  these  cases,  the  formula  did  not 
come  into  use  concurrently  with  the  legis  actio,  and  why  the  ancient 
litis  contestatio  was  preserved ;  why,  in  short,  in  causes  coming 
before  the  centumviral  court  the  legis  actio  (sacramento)  was  not 
superseded  by  the  formulary  procedure.  In  the  judicia  privata, 
where  a  private  individual  had  each  time  to  be  appointed  judex  for 
the  nonce,  the  ancient  ceremony  of  litis  contestatio  had  found  a 
rival  in  the  praetorian  decree  of  appointment ;  no  such  rivalry 
could  spring  up  where  there  was  no  judex  to  appoint.^ 

The  second  fact  has  reference  to  the  so-called  'voluntary  juris- 
diction,' i.e.  that  kind  of  judicial  procedure  which  serves  the  pur- 
pose, not  of  determining  rights  which  are  in  dispute,  but  of  estab- 
lishing new  rights.  An  example  of  this  jurisdiction  occurs  in  the 
case  of  in  jure  cessio,  i.e.  the  transfer  of  a  right  by  means  of  a  con- 
fessio  in  jure.  Inasmuch  as,  in  this  case,  the  allegation  of  title 
put  forward  by  the  fictitious  plaintiff  (the  transferee  of  the  right)  is 
immediately  followed  in  jure,  before  the  magistrate,  by  the  jural 
confession  of  the  fictitious  defendant  (the  transferor),  no  neces- 
sity, of  course,  arises  for  proceeding  to  a  judicium,  simply  because 
there  is  no  legal  issue  to  decide.  For  the  very  same  reason  there 
is  also  no  occasion  for  a  formula,  because  there  is  no  judex  to  ap- 
point. The  result  was  that  in  jure  cessio,  as  long  as  it  existed  (i.e. 
throughout  the  whole  classical  period  and  even  longer),  retained 
the  forms  of  the  legis  actio  procedure,  the  particular  legis  actio 
employed  being  again  the  L.  A.  sacramento. 

Both  these  facts  signify  one  and  the  same  thing,  namely  that 
where  there  is  no  occasion  for  instituting  a  judicium  in  any  particu- 
lar case  by  means  of  a  decree  of  appointment,  in  every  such  case 
there  is  neither  formula  nor  formulary  precedure,  and  the  ancient 
legis  actio  procedure  holds  its  own. 

The  lex  Aebutia  and  the  leges  Juliae  did  not  simply  abolish  the 
legis  actio  procedure  and  substitute  the  formulary  procedure  in  its 
place.  Wliat  they  did  was  rather  this  :  wherever,  as  a  matter  of 
fact,  the  formulary  procedure  was  already  in  practical  use,  in  other 
words,  wherever,  as  a  matter  of  fact,  the  sententia  of  the  judex 
already  proceeded  on  the  basis,  not  of  the  old  litis  contestatio,  but 

^  The  decemviral  court  was  dissolved  by  Augustus ;  otherwise  it  is 
certain  (as  is  very  happily  pointed  out  by  Mommsen,  ^'Staatsr.,"  vol.  ii. 
p.  592,  note  1)  that  the  old  legis  actio  sacramento  would  have  been  pre- 
served in  cases  coming  before  it  (actions  relating  to  personal  freedom). 
Of  course  there  was  no  more  occasion  for  the  use  of  a  formula  or  decree  of 
appointment  for  the  decemviral  court  than  there  was  for  the  centumviral 
court. 


Chap.  XXXI,  §  7.]        ANCIENT    ROMAN    PROCEDURE  687 

of  the  magisterial  formiila,  in  those  cases  alone  (and  they  formed,  it 
is  true,  the  great  majority)  the  above-mentioned  laws  confirmed  the 
formulary  procedure,  and  at  the  same  time  swept  away  the  fossil- 
ized relics  of  the  concurrent  legis  actio  procedure.  But  where  the 
formulary  procedure  was  not  in  use  —  as  in  the  cases  falling  under 
the  jurisdiction  of  the  centumviral  court  and  the  cases  of  'volun- 
tary jurisdiction,'  and  damnum  infectum  —  the  laws  referred  to  did 
not  introduce  the  formulary  procedure. 

Thus  in  matters  coming  before  the  centumviral  court  the  old  legis 
actio  Sacramento  remained,  but  in  all  cases  of  judicia  privata  the 
formulary  procedure  henceforth  prevailed.  The  change  meant 
simply  this,  that  henceforward  the  judex,  in  order  to  find  an 
authoritative  statement  of  the  issue  upon  which  he  was  to  deliver 
his  sententia,  would  have  to  look  to  the  magisterial  decree  of  ap- 
pointment, i.e.  the  communication  which  the  praetor  conveyed  to 
him  in  reference  to  the  legal  issue  submitted  to  his  decision.  In 
other  respects  everything  remained  as  before.  The  severance  of 
jus  and  judicium  remained,  nor  was  the  old  rule  altered  that  the 
magistrate's  functions  were  restricted  to  introducing,  allowing  and 
formulating  the  issue,  the  final  decision  being  reserved  for  the  ver- 
dict of  the  judex.  Nothing  was  changed  except  that  the  formal 
foundation  of  the  judicium  had  been  shifted.  In  effecting  such  a 
reform  by  means  of  the  lex  Aebutia  and  the  leges  Juliae,  it  is  quite 
possible  that  men  merely  imagined  they  were  ridding  themselves 
of  some  futile  and  antiquated  formalities,  and  perhaps  also  (at  the 
time  of  the  lex  Aebutia)  of  the  predominant  influence  of  the  pon- 
tifices  over  the  legal  procedure  of  the  cit}'  of  Rome.  The  reform, 
such  as  it  was,  was  probably  not  regarded  as  possessing  any  unusual 
significance,  and  it  is  hardly  to  be  supposed  that  the  Romans  were 
conscious  of  having  accomplished  anything  great,  more  especially 
as  the  idea  of  a  fundamental  reform  of  civil  procedure  never  oc- 
curred to  their  minds,  as  we  see  from  the  manner  in  which  they 
treated  matters  appertaining  to  the  centumviral  court. 

In  real  truth,  however,  the  reform  which  had  thus  been  carried  to 
its  conclusion,  was  one  of  the  utmost  importance  in  its  far-reaching 
practical  results. 

4.  The  Formula 

The  granting  of  the  formula,  i.e.  the  decree  by  which  the  judex, 
or  the  several  recuperatores,  were  appointed,  had  now  become  the 
medium  by  which  the  litis  contestatio  was  carried  out.  In  other 
words,  it  formulated  the  legal  issue  for  the  purpose  of  a  decision  in 


688  PROCEDURE  [Part  IV. 

judicio.^    The  written  formula  of  the  magistrate  superseded  the 
oral  formula  of  the  parties. 

In  point  of  legal  force  this  new  kind  of  litis  contestatio  was 
theoretically  inferior  to  the  solemn  act  of  the  parties  in  the  legis 
ffctio  procedure.  An  act  of  writing  was,  in  the  eye  of  the  early 
law,  an  informal  act  devoid  of  all  solemnity,  and  was  therefore,  in 
the  legal  sense  of  the  jus  civile,  really  no  actio  at  all,  i.e.  it  was  not 
an  act  by  which  a  person's  statutable  right  of  action  was,  at  the 
same  time,  exercised  and  exliausted.  As  far  as  its  nature  and 
the  law  were  concerned,  the  formula  could,  ipso  jure  civili,  be 
retracted,  repeated,  or  amended,  if  the  decree  of  the  praetor  so 
directed.  For  the  civil  law  it  had  simply  no  existence,  since  it  was 
a  mere  creation  of  the  jus  honorarium ;  at  civil  law  therefore  it  was 
not  a  litis  contestatio  at  all,  so  that  there  was  legally  speaking  (ipso 
jure)  nothing  to  prevent  the  identical  claim  being  brought  before  the 
praetor  by  action  and  carried  on  to  the  judicium  twice  over.  The 
lex  Aebutia  and  the  two  leges  Juliae  made  the  formulary  procedure 
as  applied  in  the  judicium  legitimum  the  only  exception.  In  this 
particular  instance  the  civil  law  had  given  its  recognition  to  the 
formulary  procedure.  If  a  suit  were  commenced  in  the  judicium 
legitimum  with  an  actio  in  personam  and  an  intentio  juris  civilis, 
the  effect  was  ipso  jure  to  consume  the  right  of  action  and 
render  any  repetition  of  the  proceedings  impossible,  just  as  had 
been  the  case  with  the  old  legis  actio.  In  all  other  cases  however 
—  and  they  formed  the  great  majority  —  the  praetor  was  obliged, 
in  each  separate  instance,  to  insert  an  explicit  instruction,  in  the 
shape  of  an  express  'exceptio  rei  judicatae  vel  in  judicium  de- 
ductae,'  in  order  to  prevent  a  cause  which,  under  the  formulary 
procedure,  had  already  led  to  the  institution  of  a  judicium,  or 
perhaps  even  been  carried  to  the  final  judgment,  from  passing 
through  every  stage  of  the  action  a  second  time.  From  this  it 
appears  that  it  was  not  the  action  as  such  (neither  the  institution 
of  the  judicium  nor  the  sententia  of  the  judex)  which  operated 
to  consume  the  right  of  action  in  the  early  law  of  procedure, 
but  solely  that  solemn  legal  act  by  means  of  which  the  party 
himself  brought  about  the  appointment  of  a  judex,  in  other 
words,  the  legis  actio  in  the  strict  sense  of  the  term,  the  old 
formal  litis  contestatio.  And  this  very  act  had  been  dropped 
in  the  formulary  procedure.  In  contemplation  of  law,  the 
operative  force  of  the  granting  of  the  formula  was  —  apart  from 

1  The  formula  granted  by  the  praetor  was  either  handed  to,  or  occasion- 
ally dictated  to,  the  defendant  by  the  plaintiff. 


Chap.  XXXI,  §  7.]        ANCIENT   RO^L^N    PROCEDURE  6S9 

the  exception  adverted  to  —  inferior  to  that  of  the  old  htis 
contestatio. 

Nevertheless  this  modest  formula,  this  written  notice  so  bald  and 
succinct,  which  the  praetor  con^•eyed  to  the  judex,  contained 
potentially  the  entire  future  development  not  only  of  the  law  of 
Roman  civil  procedure,  but  also  of  Roman  private  law  and,  with  it, 
of  Roman  law  in  general. 

The  ancient  legis  actio  procedure,  with  its  litis  contestatio  tied  to 
set  traditional  words,  offered  but  an  extremely  limited  choice  of 
ways  in  which  to  formulate  the  legal  issue.  If  none  of  these 
traditional  forms  was  strictly  appropriate,  the  only  remedy  sup- 
plied by  the  civil  law  was  to  have  recourse  to  the  so-called  'pro- 
cedure by  sponsio'  (agere  per  sponsionem).  A  made  a  formal 
promise  (sponsio)  to  his  opponent  B  that,  if  the  allegation  of  fact 
or  law  put  forward  by  B  were  true,  he  (A)  would  pay  a  sum  of 
money.  This  sponsio  could  be  enforced  by  a  legis  actio  Sacra- 
mento in  personam,  and  the  judicium  on  the  sponsio  would 
involve  a  judicium  and  sententia  on  the  question  of  law  or 
fact  which  formed  the  basis  of  the  promise.  The  amount  of 
the  sponsio  was  never  actually  paid,  because  a  sponsio  of  this 
kind  (a  so-called  'sponsio  praejudicialis ')  was  not  designed  for 
the  recovery  of  a  sum  of  money,  but  was  merely  intended  to 
bring  on  an  action ;  to  serve,  so  to  speak,  as  a  device  for  forcing 
on  legal  proceedings.^ 

On  the  other  hand,  there  was  no  tradition  to  fetter  the  formula  of 
the  praetor.  In  the  old  litis  contestatio  the  issue  was  formulated 
in  narrowly  prescribed  terms ;  in  the  new  formula  the  terms  used 
were  informal  and  freely  chosen  by  the  magistrate.  The  formula 
was  thus  well  adapted  as  a  means  for  directly  submitting  to  the 
decision  of  a  judex  in  judicio  an}'  question,  or  complex  of  questions, 
which  the  praetor  deemed  actionable.  The  praetor  himself  was 
now  in  a  position,  while  formulating  the  legal  issue,  to  give  the 
judex  at  the  same  time  direct  instructions  in  reference  to  the  deci- 
sion of  such  issue.  For  whether  the  judge  condemned  or  acquitted 
depended  now  solely  on  the  manner  in  which  the  praetor  formu- 
lated the  question  in  dispute. 

The  formula  was  bound  to  become,  and  did  in  fact  become,  the 

'It  was  different  with  the  so-called  'sponsio  poenalis,'  which  was  a 
sponsio  on  the  result  of  an  action,  the  parties  themselves  contemplating 
the  payment  of  the  money.  On  the  defendant  tenderinga  sponsio  poenahs, 
the  plaintiff  had  to  reply  with  a  'repromissio,'  i.e.  a  promise  to  pay  the 
same  amount  if  defeated  in  the  action.  No  repromissio  was  required  in 
the  case  of  the  sponsio  praejudicialis.  Gaj.  iv.  §§  13,  94,  171 ;  Bekker, 
"  Aetionen,"  vol.  i.  p.  240  ff. 


G90  PROCEDURE  [Part  IV. 

instrument  by  means  of  which  not  only  the  wording,  but  also  the 
decision  of  the  legal  issue  was  emancipated  from  the  trammels  of 
the  ancient  statute-law  and  the  exclusive  influence  of  the  civil  law. 
The  formula,  in  a  word,  was  the  weapon  by  which  the  praetor  and 
his  jus  honorarium  were  enabled  to  assert  their  dominant  influence 
over  the  whole  development  of  Roman  law. 

The  legis  actio  and  everything  connected  with  its  development 
and  interpretation  was  in  the  hands,  not  of  the  praetor,  but  of  the 
pontifices.  In  the  legis  actio  procedure  the  judex  was  indepen- 
dent of  praetorian  instructions.  Officially  he  was  only  bound  to 
abide  by  such  instructions  regarding  his  judicium  as  were  contained 
in  the  solemn  litis  contestatio  of  the  parties,  and  in  giving  his  deci- 
sion on  the  issue  thus  joined,  he  was  obliged  to  act  in  accordance 
with  the  civil  law,  and  more  especially  in  accordance  with  the  pon- 
tifical interpretatio.  In  jure  the  magisterial  power  was  paramount, 
in  judicio,  however,  the  old  civil  law,  preserved  and  handed  down 
by  statute  and  pontifical  tradition,  and  operating  through  the  judex 
as  its  organ,  held  absolute  sway.  But  now  the  relation  between 
the  jus  praetorium  and  jus  civile  was  altered.  The  praetorian 
decree  of  appointment  (formula)  had  come  to  be  binding  even  in 
civil  law  matters.  That  is  to  say,  even  in  civil  law  cases,  it  was 
now  not  enough  that  the  judex  should  simply  decide  in  accord- 
ance w^ith  the  civil  law ;  he  was  obliged,  in  the  first  instance,  to 
decide  on  the  basis  of  the  praetorian  formula,  having  regard  always 
to  such  limitations  and  instructions  as  were  conveyed  in  that 
formula.  Thus  within  the  domain  of  the  civil  as  well  as  the 
praetorian  law  the  judex  became  dependent  on  the  praetor.  He 
was  bound  by  the  instructions  (formula)  of  the  praetor  to  acquit 
the  defendant  even  where,  according  to  the  civil  law,  he  ought 
to  have  condemned  him.  In  other  cases  he  was  bound  con- 
versely, in  virtue  of  the  praetor's  instructions  again,  to  condemn 
the  defendant  where  the  civil  law  would  have  required  his 
acquittal.  With  one  stroke  the  judex  had  been  converted  from 
an  organ  of  the  civil  law  into  an  organ,  in  the  first  instance, 
of  the  praetorian  law. 

Through  the  medium  of  the  formula  the  praetor  was  now  master 
of  the  whole  legal  procedure,  including  the  procedure  in  ci^dl  law 
causes,  and  the  edict  began  henceforth  to  dominate  the  practice  and 
development  of  the  law.  Apart  from  the  centumviral  causes,  the 
enforcement,  in  the  courts,  of  the  civil  law  was  now  entirely  subject 
to  the  limitatibns  which  the  praetor  in  his  edict  thought  fit  to  im- 
pose on  it.  .  .  . 


Chap.  XXXI,  §  8.]  EVOLUTION   OF   PROCEDURE  691 

The  judex  ceases  to  be,  even  for  the  jus  civile,  an  independent 
private  individual,  bound  b}'  nothing  but  the  positive  law.  He 
becomes  an  organ  of  the  magisterial  power  and  is  already  beginning 
to  assume  the  character  of  a  subordinate  official.  Thus  the  develop- 
ment of  the  formulary  procedure  was  a  decisive  element  in  paving 
the  way  for  the  subsequent  elimination  of  the  distinction  between 
jus  and  judicium.  And  while  thus  securing  full  control  over 
the  judex,  the  praetor  at  the  same  time  definitely  appropriated  to 
himself  a  predominant  influence  over  the  whole  evolution  of  Roman 
law.  The  formulary'  procedure  marks  the  beginning  of  that  vigor- 
ous development  of  the  jus  honorarium,  so  momentous  in  its  con- 
sequences, which  resulted  in  the  metamorphosis  of  the  jus  civile  and 
the  birth  of  classical  Roman  law.  A  reform  of  procedure  was 
followed  by  a  reform  of  the  law  itself. 


Section  8 
EVOLUTION   OP  PROCEDURE  1 

Procedure,  criminal  and  civil,  exliibits  to  us  a  full  crop  of  inter- 
esting similarities  between  the  different  historic  systems. 

§  1.  Methods  of  Proof.  —  In  criminal  procedure,  we  naturally 
find  proof  by  witnesses  and  by  confession  universally  employed, 
though  with  prodigious  variety  of  importance.  One  might  be 
surprised,  however,  to  discover  that  every  primitive  or  barbarous 
people  has  made  use  of  that  mystical  expert  testimony  known 
as  the  ordeal,  in  which  hiunan  life  seems  almost  like  the  stake 
in  a  game  of  chance  or  skill.  Still  more  surprising  is  it,  however, 
to  find  that  the  forms  of  the  ordeal  apparently  vary  little  from 
people  to  people.  The  judicial  duel,  or  wager  of  battle,  it  is  true, 
was  not  everywhere  practised  ;  it  could  only  develop  spontaneously 
in  a  pugnacious  tribe;  no  pacific-minded  people  (and  there  are 
many  such,  even  among  so-called  savages)  could  have  devised  it. 
Neither  in  the  Brahmanic  codes  nor  in  the  Avesta  is  it  found  ;  but 
we  meet  it  in  the  tribes  of  America,  Australia,  and  Oceanica,  as 
well  as  in  the  Old  World.  The  ordeals  by  boiling  water  and  by 
red-hot  iron    were    widespread ;     they  appear  in  India,   Persia, 

'  [By  Gabriel  Tarde.  Translated  by  Jnhyi  H.  Wigmnre  from  eh.  II  of 
that  author's  "Les  transformations  du  droit,  etude  s()C'ioh)frique  "  (1st 
ed.  1893,  7th  ed.  1912,  Paris),  %vith  the  consent  of  ]\Ini(>.  Tarde.  M. 
Tarde,  famous  alike  as  jurist,  soeiolofz;ist,  and  psyeholopfist,  died  in  1909; 
an  account  of  his  career  will  be  found  in  the  Preface  to  the  translation  of 
his  "Penal  Philosophy"  (1913,  Modern  Criminal  Science  Series)]. 


692  PROCEDURE  [Part  IV. 

Georgia,  Bohemia,  Poland,  Serbia,  Sweden,  Norway,  Denmark, 
Germam,  and  elsewhere.  Plainl;\'  this  extension  was  due  to 
imitation  induced  by  contact.  But  what  motive  accounts  for 
such  a  popularity?  We  must  infer  that  wherever  this  supersti- 
tious resort  to  divine  intervention  was  acclimatized  from  without, 
it  served  as  a  substitute  for  even  more  irrational  or  cruel  practices 
which  had  preceded  it. 

As  a  general  truth,  there  appears  to  have  been  a  certain  logical 
and  irreversible  order  (not  Jiowever  a  constant  one)  in  the  his- 
torical succession  of  the  ordeals,  at  least  wherever  the  judicial 
duel  was  employed.  They  seem  to  have  followed  each  other  with 
gradual  mollification,  —  illustrating  that  general  principle  of 
minimum  effort  which  dominates  changes  in  industries,  as  well 
as  in  rituals,  phonetics,  and  grammars.  The  inclination  of  our 
modern  courts  to  treat  the  penal  law  from  the  point  of  view  of 
correction  and  reform  is  an  example  of  the  same  general  tendency. 
Thus  the  judicial  duel  —  the  most  senseless  and  bloody  of  the 
ordeals,  and  the  one  least  capable  of  popularization  —  gave  place 
usually  to  the  ordeals  of  water  and  of  fire,  —  practices  more 
humane  than  one  might  imagine,  and  more  capable  of  evasion. 
And  finally  they  are  all  supplanted  by  the  oath,  which  may  be 
regarded  (as  INI.  Dareste  well  says)  as  a  "milder  and  simplified 
form"  of  the  judicial  duel.^  The  oath  usually  preceded  all  the 
others,  and  invariably  survived  them.  As  far  back  as  we  go, 
and  even  where  no  trace  of  the  judicial  duel  is  found,  nor  of  any 
other  ordeal,  the  primary  proof  is  the  oath. 

In  the  Sutras,  the  earliest  Brahmanic  codes,  the  only  proofs 
are  those  of  water  and  of  fire ;  as  yet  the  parties'  oaths  do  not 
appear ;  but  we  see  the  witness'  oath  beginning  to  be  used,  and 
it  tends  to  predominate.  In  the  code  of  Manu,  later  than  the 
Sutras,  which  marked  a  new  epoch  in  the  Brahmanic  system, 
proof  was  made  by  witnesses,  and  w^hen  necessary,  by  the  party's 
oath.  The  Ossetes  of  the  Caucasus  (where  many  archaisms  of 
law  survive)  make  use  to-day  of  only  the  oath  and  the  usual  sorts 
of  proof;  but  there  is  evidence  that  the  judicial  duel  and  the  other 
ordeals  were  formerly  in  use,  and  traces  of  them  remain.  In  all 
the  peoples  of  Germanic  race,  the  judicial  duel  was  the  earliest 
procedure ;  those  countries  were  the  cradle  of  the  method,  and 
in  them  originated  the  various  changes  which  it  underwent,  down 

1  From  the  oath  of  Merovingian  times  to  our  present-day  oath,  partic- 
ularly to  the  parties'  "decisor.y"  oath  and  to  the  wdtness-oath,  is  but  a 
single  step,  and  the  transition  is  easy  to  trace.  Our  oath  is  itself,  there- 
fore (though  only  one  form)  a  reUc  of  the  ''decision  of  God." 


Chap.  XXXI,  §  8.]  EVOLUTION   OF   PROCEDURE  693 

to  the  neo-chivalric  absurdities  of  the  modern  dueh  Since  the  time 
of  Tacitus  they  practised  a  divinatory  duel,  of  which  the  judicial 
duel  was  the  natural  product.  That  they  used  (in  the  early 
period)  the  ordeal  by  boiling  water,  is  doubtful ;  for  Tacitus  does 
not  mention  it ;  but  it  appears  by  the  time  of  the  Salic  code,  as 
also  the  oath  of  the  party  and  his  compurgators.  In  Sweden, 
Norway,  and  Denmark,  the  judicial  duel  was  abolished  about 
A.D.  1000,  under  Christian  influences,  and  the  ordeal  of  red-hot 
iron  replaced  it.  In  the  1200  s  the  latter  was  in  its  turn  sup- 
pressed (but  not  without  popular  opposition).  With  this  elimina- 
tion of  the  "decision  of  God,"  there  remained  only  the  proof  by 
oath  of  the  party  and  his  compurgators.^ 

In  Iceland  also  the  duel  w^as  abolished,  a.d.  1011,  under  the 
influence  of  Christian  ideas;  then  the  ordeal  of  red-hot  iron  pre- 
vailed ;  and  finally  the  oath,  not  taken  by  the  party,  but  by  a 
group  of  neighbors  not  unlike  the  ^Merovingian  compurgators. 
In  Ireland,  the  abolition  of  the  judicial  duel  goes  back  to  St. 
Patrick,  in  the  400  s ;  it  was  supplanted  by  the  ordeal  of  boiling 
water,  mentioned  in  the  Senchus  Mor;  then  by  the  oath  of  the 
party  and  his  compurgators. 

Among  all  the  Slavic  peoples  —  Czechs,  Russians,  Poles,  etc. 
—  the  judicial  duel  was  the  primitive  custom.  With  the  Czechs 
it  was  specially  applicable  to  homicide,  —  a  murderous  proceeding 
suitable  for  a  charge  of  murder.  But  in  certain  cases,  the  oath 
was  substituted,  viz.  where  the  party  was  incapable  of  a  combat ; 
and  this  exception  became  the  rule,  —  gradually,  no  doubt.  If  a 
house  was  attacked  by  night,  the  accused  could  exonerate  himself 
by  taking  oath,  with  two  fingers  resting  on  a  red-hot  iron,  —  an 
original  combination  of  two  modes  of  proof.  But  in  case  of  in- 
jury to  a  crop,  the  accused  exonerated  himself  by  an  oath  cor- 
roborated by  witnesses,  and  these  witnesses,  we  are  told,  took 
the  place  of  the  boiling  water  formerly  used.  In  Poland,  the 
judicial  duel  had  been  usual ;  but  if  the  accused  proved  that  he 
was  not  fit  to  fight,  they  resorted  to  the  ordeal  of  red-hot  iron. 
The  oath  was  also  allowed,  but  was  required  only  for  wrongs  of 
minor  importance ;  these  being  the  more  numerous,  it  was  natural 
that  the  oath  should  become  finally  the  normal  method  ;  and  m 
the  statute  of  Wislica  (1300  s  and  1400  s),  which  abrogated  many 
old  customs,  we  read  that  neither  ordeal  nor  judicial  duel  are  any 

1  Plainly  this  parallelism  in  the  order  of  succession  in  these  three  king- 
doms, as  well  as  among  the  Ossetes  and  the  others,  has  nothing  surprising 
in  it ;  the  same  historic  cause,  viz.  the  preaching  of  the  Gospel,  naturally 
had  the  same  effects. 


694  PROCEDURE  [Part  IV. 

longer  employed  ;  the  oath  still  plays  a  prominent  role ;  and  some- 
times compurgators  are  required.  The  Lithuanian  code,  like 
the  Polish  code,  which  influenced  it,  provided  for  proof  by  the 
complainant's  oath,  in  case  of  homicide,  or  wounding.  In  Russia, 
in  the  900  s,  the  judicial  duel  was  widespread ;  whether  the  ordeals 
by  fire  or  by  Avater  were  used  does  not  appear.  But  the  dominant 
proof  was  the  complainant's  oath,  together  with  circumstantial 
presumptions.  In  Dalmatia,  in  the  1200  s,  the  oath  was  the  most 
esteemed  proof,  —  taken  by  the  complainant,  if  he  had  witnesses, 
otherwise  by  the  accused ;  when  compurgators  were  required, 
and  the  required  number  were  lacking,  the  party  could  make  up 
the  deficiency  by  repeating  his  own  oath  to  the  required  number 
of  times.  In  Hungary,  the  judicial  duel  is  exceptionally  found 
to  survive  the  ordeal  of  the  red-hot  iron,  which  in  the  1200  s  was 
used  for  deciding  nine-tenths  of  the  cases.  But  the  duel,  in  its 
later  persistence,  was  much  modified  and  had  no  mortal  features ; 
and  while  the  ordeal  was  in  favor,  the  clergy  were  allowed  to  sub- 
stitute the  oath  for  it.  Finally,  we  note  that,  in  the  Serbian  code 
of  the  1300  s,  the  favorite  mode  of  proof  was  not  the  oath  (as  in 
the  neighboring  peoples),  but  the  decision  of  God  by  boiling  water 
and  by  red-hot  iron.^ 

This  rapid  survey  will  suffice  for  allowing  us  to  interpret  the 
true  nature  of  the  similitudes  observable  between  peoples  most  of 
whom  have  been  in  relations  of  successive  contact  with  one  another. 

Note,  first,  that  the  formulas  of  invocation  used  for  the  ordeals 
of  fire  and  of  water  were  the  same  throughout  Christendom.  This 
little  circumstance  reveals  plainly  the  important  role  played  by 
Imitation  in  this  point.  And  note  also,  as  corroborative  evidence, 
that  among  the  Chinese  and  the  Japanese  there  is  no  trace  of 
ordeals ;  and  that  the  acquaintance  with  them  in  Cambodia  and 
Thibet,  countries  subject  in  all  epochs  to  the  influence  of  enlighten- 
ment from  India  and  its  imitative  influence,  the  ordeal  there  used 
was  that  of  boiling  oil,  and  probably  of  Hindu  origin.  In  Mada- 
gascar, among  the  Hovas,  and  here  and  there  throughout  Africa, 
the  usual  ordeal  is  that  of  a  poisoned  drink. 

Note  furthermore  that  though,  in  America  and  in  Australia,  as 
well  as  in  the  Old  World,  the  judicial  duel  and  some  ordeals  were 
practised,  yet  in  the  former  the  oath  was  not  used  ;  and  that  indeed 
the  judicial  oath  is  unknown  among  almost  all  wild  tribes,^  while 
it  is  known  among  some  peaceful  and  agricultural  tribes.     Here  is 

1  The  foregoing  data  are  taken  from  M.  Dareste's  book. 

2  Letourneau,  "  Evolution  juridique,"  p.  43. 


Chap.  XXXI,  §  8.]  EVOLUTION   OF   PROCEDURE  G95 

a  difference  which  has  its  meaning,  and  which,  taken  with  others, 
serves  to  restrict  within  their  proper  hmits  the  simihtudes  already 
observed.  We  have  noticed  that  among  certain  Slavic  peoples 
the  complaint  could  be  proved  by  the  plaintiff  or  accuser,  —  an 
exception  to  the  ordinary  rule  among  primitive  peoples.^  In  both 
cases  alike,  to  be  sure  —  whether  the  accuser  or  the  accused  be 
allowed  to  settle  the  case  by  his  oath  —  we  see  the  strength  of  the 
feeling  of  honor  and  of  the  holy  horror  attaching  to  the  idea  of 
perjury ;  but  we  certainly  could  not  assert  that  the  distinction 
betvreen  one  party  or  the  other  taking  the  oath  had  no  significance. 
The  right  of  making  proof  by  oath  was  regarded  as  a  substantial 
advantage;  and  that  is  why,  in  all  primitive  legal  systems,  the 
"onus  probandi"  (nowadays  become  a  "burden,"  but  then  a 
privilege)  fell  upon  the  accused  or  defendant.  The  truth  is  that 
the  "burden  of  proof"  was  at  one  period  generally  on  the  defendant 
or  accused,  and  afterwards  in  a  later  period  passed  to  the  complain- 
ant, until  this  latter  principle,  in  our  day,  has  become  an  undisputed 
axiom.  No  one  has  discovered,  so  far  as  I  am  aware,  an  instance 
of  the  opposite  transition,  i.e.  of  the  evolution  of  the  duty  of  mak- 
ing proof  from  the  complainant  to  the  defendant.^  And  this 
illustrates  what  I  have  above  termed  an  irreversible  process.  And 
these  instances  of  irreversibility,  I  confess,  have  to  my  mind  much 
more  value  than  the  similitudes  whose  first  impression  is  more 
striking ;  for  they  exhibit  the  working  of  the  social  logic.^ 

Take  another  rule  of  proof,  the  rule  "testis  unus,  testis  nullus," 
wdiich  was  universally  in  force  in  the  European  ^Middle  Ages,  and 
even  in  our  daj-  is  still  preserved  in  some  of  the  United  States. 

^  I  pass  over  minor  differences.  Among  the  Aborigines  of  India,  the 
judicial  oath  is  taken  on  the  skin  of  a  tiger  or  a  lizard ;  in  Sumatra,  on 
the  grave  of  an  ancestor;  among  the  Germans,  originally,  on  a  sword 
consecrated  to  the  gods,  and  after  their  conversion  to  Christianity,  on 
the  relics  of  a  saint,  as  elsewhere  upon  the  Gospel  or  the  Koran.  The 
women  of  Germany  took  oath  "by  their  breasts."  Insignificant  as  these 
details  may  seem,  they  reveal  none  the  less  essential  divergences  of  con- 
ceptions as  to  the  order  of  sanctity  in  the  objects  of  their  reverence. 

2  The  causes  for  disqualifying  witnesses  exhibit  an  analogous  inversion. 
Among  the  Arabs  {Seignctte,  loc.  cit.),  by  the  Musulman  code,  the  wtness' 
relationship  to  the  complainant,  hut  not  to  the  accused,  authorizes  the 
rejection  of  his  testimony,  —  just  the  opposite  of  our  own  rule.  This 
ditTerence  is  due  to  the  accusatory  system ;  and  as  the  growth  of  inter- 
course and  the  extension  of  the  social  group  led  ine\'itablj'  to  the  system 
of  official  prosecution  replacing  that  of  private  complaint,  one  may  infer 
here  also  that  the  transition  from  the  Arab  principle  of  disqualification  of 
witnesses  to  our  own  principle  is  an  irreversible  process.  —  In  our  own  law, 
even  yet,  when  the  injured  party  brings  a  civil  suit  —  the  last  relic  of 
the  accusatory  system  —  he  cannot  testify  to  the  facts  of  his  injur3^ 

'  [For  the  author's  theory  of  "social  logic"  in  evolution,  see  the  other 
passage  from  his  book,  translated  ante,  in  the  Introduction,  section  III, 
§  1,  par.  XL] 


696  PROCEDURE  [Part  IV. 

One  might  suppose  that  this  rule  had  its  origin  in  human  nature, 
and  that  its  (relative)  universality  would  be  thus  explained.  But 
this  rule  requiring  two  "witnesses  is  founded  ^  on  the  passage  in  St. 
John's  Gospel :  "  In  lege  vestra  scriptum  est  quod  duorum  hom- 
inum  testimonium  verum  est"  ;  and  from  that  Gospel  passage  the 
Hebrew  command  spread  over  two  worlds.  Probably,  also,  this 
Jewish  custom  accounts  for  the  Arab  custom  also  requiring  two 
witnesses.- 

Take  further  the  idea  of  compurgation.  The  Berbers  of  North 
Africa  have  always  had  compurgators ;  if  fifty  persons  swear  that 
he  is  innocent,  he  is  acquitted.  Is  that  an  imitation  of  our  analo- 
gous European  institution  ?  Perhaps,  rather,  it  is  a  survival  from 
a  common  body  of  tradition.  Besides,  the  most  natural  expedient 
that  would  spontaneously  occur  to  a  man  of  the  populace  accused 
of  a  misdeed  would  be  (if  he  lacked  proof  by  witnesses  or  otherwise) 
to  call  upon  his  neighbors,  relatives,  and  friends  to  bear  witness 
formally  to  his  good  conduct  and  repute,  his  virtue  and  truthful- 
ness. This  idea  is  so  natural  that  it  must  have  given  rise  —  in 
mam'  countries  simultaneously,  and  without  any  imitation  —  to 
an  expedient  analogous  to  our  compurgation.  Its  almost  universal 
use  is  easy  to  understand.  Indeed,  it  can  be  said  not  to  have 
wholly  disappeared ;  for  after  the  oath  of  compurgation  had  been 
abolished,  the  custom  remained  down  into  the  1700  s  for  the  ac- 
cused to  be  escorted  to  the  courthouse  by  a  long  train  of  relatives 
and  friends,  whose  mere  presence  was  a  silent  and  formal  indorse- 
ment of  his  honorable  character.  And  in  our  own  day,  the  instinct 
to  invoke  such  a  popular  indorsement  is  so  strong  that  in  most  of 
the  correctional  tribunals  and  jury  trials  the  accused  parties  get 
their  counsel  to  read  certificates  of  character  fortified  by  inter- 
minable lists  of  names.  And  still  more  notably,  when  a  popular 
personage  happens  to  be  publicly  charged  with  misconduct  re- 
flecting upon  his  honor,  and  he  happens  thereafter  to  be  a  candidate 
for  election  to  some  office,  do  we  not  all  believe  (a  few  philosophers 
excepted)  that  his  election  by  the  majority  is  a  sort  of  acquittal 
by  the  "vox  populi,"  which  passes  always  for  the  "vox  Dei"? 
His  electors  are  just  so  many  compurgators.  And  we  must  admit 
that  this  proceeding,  interpreted  in  its  general  principle,  would 
take  us  straight  back  to  primitive  times.  .  .  . 

Let  me  now  point  out  a  general  truth  in  the  so-called  evolution 
of  law,  applicable  to  the  foregoing  data,  and  illustrating  the  im- 

^  Viollet,  "Histoire  du  droit  frangais,"  p.  26. 

*  But  with  this  modification,  viz.  two  men,  or  one  man  and  two  women. 


Chap.  XXXI,  §  8.]  EVOLUTION   OF    PROCEDURE  697 

portant  part  played  by  imitation.*  If  we  take  a  juridical  invention 
all  by  itself  —  e.g.  the  judicial  duel,  the  judicial  oath,  the  ordeal 
by  fire,  the  jury,  proof  by  torture,  or  extradition,  or  for  that  matter, 
in  other  fields,  adoption,  lease  on  shares,  etc.  —  and  trace  its  course 
in  history,  nothing  seems  to  show  more  clearly  a  process  of 
Evolution ;  and  the  same  is  true  when  we  trace  a  specific  word- 
root  or  a  myth  or  a  machine  or  a  method  of  art,  through  its  travels 
in  space  and  time.  But  the  moment  we  take  several  juridical  in- 
ventions together  (even  related  ones)  —  such  as  the  group  of  differ- 
ent ordeals  or  of  different  actions  at  law  or  forms  of  civil  proced- 
ure, or  of  systems  of  relationship  or  succession,  etc.  —  the 
moment  we  do  this  and  attempt  to  describe  as  an  "evolution" 
the  gradual  replacement  of  one  by  another,  we  then  find  that  nothing 
is  more  obscure  than  this  new  sense  of  the  word,  —  quite  distinct 
from  the  former  sense.  And  its  obscurity  is  not  due  to  the  greater 
complexity  of  details  (for  they  are  not  always  more  complex),  but 
to  something  contradictor}-  which  makes  itself  felt,  viz.  a  positive 
discontinuity  and  accidentality,  concealed  under  that  deceptive 
semblance  of  necessary  continuity  (or  continuous  necessity)  which 
is  inherent  in  the  very  notion  of  Evolution.  Why,  then,  do  we 
find  this  difference  ?  Because,  in  the  former  of  the  two  methods  of 
study,  the  changes  observed  consist  principally  in  two  things : 
1st,  in  the  greater  or  less  imitative  propagation  which  has  fallen 
to  the  lot  of  some  juridical  idea  which  was  somewhere  once  in- 
vented by  some  ingenious  brain  (thanks  to  special  circumstances) 
and  spread  gradually  into  new  groups  and  was  used  for  new  pur- 
poses ;  2d,  in  the  greater  or  less  belief  in  its  efficacy  which  attended 
this  imitative  diffusion.  These  two  phenomena  are  indeed  con- 
tinuous; and  they  constitute  a  genuine  Evolution,  —  an  ascending 
or  a  descending  one,  a  development  or  a  decline,  according  as  they 
fulfil  themselves  in  an  increase  or  a  decrease  of  imitation  and  of 
faith  in  their  efficacy. 

As  an  example,  take  the  judicial  duel.  Once  this  idea  was 
born  -  —  in  some  corner  of  Gaul  or  Germany  —  of  making  the 

1  [For  this  author's  exposition  of  his  theory  of  Imitation  as  the  basis 
of  most  so-called  Evolution,  see  the  Introduction  to  the  present  volume, 
section  III,  §  1.] 

2  It  was  suggested  by  a  much  older  idea,  mentioned  by  Tacitus,  viz. 
that  of  making  a  warrior  of  their  own  army  fight  with  a  prisoner  taken 
from  the  enemy,  so  as  to  divine  the  issue  of  the  general  battle  from  the 
issue  of  this  particular  one.  Thus  the  divinatory  duel  gave  rise  to  the 
judicial  duel.  Yet  they  are  two  separate  inventions;  for  the  latter  re- 
quired a  new  mental  combination,  viz.  the  appHeation  of  the  idea  of 
consulting  the  divinity,  by  means  of  a  single  combat,  not  to  the  issue  of 
a  battle  of  two  armies,  but  to  the  issue  of  a  lawsuit  of  two  men. 


698  PROCEDURE  [Part  IV. 

parties  fight,  to  find  out  which  one  was  in  the  right,  it  spread,  — • 
first  to  the  surrounding  peoples ;  then,  within  each,  from  one  social 
stratum  to  the  other,  from  the  great  to  the  humble.  And,  natu- 
rally it  spread  with  an  increasing  faith  in  its  efficacy,  in  proportion 
as  their  bloody  expedient  was  seen  to  be  extending  among  others ; 
for  the  Burgundian  Code  of  king  Gondebad  ^  and  the  fulmina- 
tions  of  the  Christian  councils  -  show  us  what  a  frenzy  of  favor 
this  procedure  enjoyed  in  the  Merovingian  epoch.  And  finally 
we  see  its  credit  exhausted  and  its  desuetude  proceeding  by  degrees, 
from  the  1300  s,  the  time  of  king  St.  Louis. 

Now  this  progress  followed  by  this  decline  —  this  wave  of  faith 
and  desire  which  rises  and  then  falls,  exliibiting  first  an  extension 
and  then  a  restriction  in  its  imitation  —  is  a  phenomenon  so  gen- 
eral that  it  might  be  termed  universal  and  therefore  necessary. 
But  this  would  be  none  the  less  an  error.  There  are  some  juridical 
ideas  —  e.g.  the  will  and  the  mortgage  —  w^hose  success,  once 
they  are  somewhere  introduced,  maintains  itself  indefinitely.^ 
And  there  are  others  —  e.g.  divorce  and  adoption  —  whose  credit 
is  subject  to  fluctuations,  and  then  to  revivals  after  a  discredit 
of  a  short  period  or  even  of  centuries.  And  there  are  exceptional 
cases  in  which,  in  place  of  steady  movement,  the  variations  of 
faith  in  them  and  of  imitation  of  them  proceed  in  inverse  ratio, 
—  the  jury,  for  example,  which  still  continues  to  spread  over  the 
world  with  its  acquired  momentum,  though  the  confidence  in 
its  verdicts  is  everywhere  at  its  lowest.  And  furthermore,  if 
one  examined  carefully,  it  would  be  found  that  the  spread  or  the 
desuetude  of  a  juridical  invention  (as  well  as  of  a  word,  a  cere- 
mony, an  artistic  form,  a  moral  precept,  or  an  industrial  tool) 
is  due  to  special  circumstances  —  mostly  accidental  —  which  have 
favored  or  opposed  it.  However  this  may  be,  and  leaving  causes 
out  of  consideration,  the  truth  remains  that  the  variations  of 
imitation  and  of  faith  form  a  natural  sequence,  like  those  of  any 
quantity  in  matter;  and  that,  like  these,  they  lend  themselves 
to  the  idea  of  a  rational  connection,  formulable  in  a  kind  of  theo- 
rems. And  some  day  these  formulas  will  be  discovered  by  the 
science  of  statistics,  —  the  transcendental  mathematics  of  society. 

1  [About  500  A.D.] 

2  [For  the  opposition  to  the  judicial  duel,  see  a  summary  account  in 
§  120  of  Brissaud's  "History  of  French  Public  Law"  (Continental  Legal 
History  Series,  1914).] 

'  "Indefinitely"  is  too  strong  a  word.  Here  too  there  are  exceptions. 
Mahomet  abolished  the  will,  which  before  his  time  obtained  in  pre- 
Islamitic  customs  (teste  M.  Seignette,  who  offers  strong  evidence  in  support 
of  his  view). 


Chap.  XXXI,  §  8.]  EVOLUTION  OF   PROCEDURE  699 

But  how  could  we  ever  hope  to  formulate  (at  least  with  analo- 
gous precision)  the  law  (if  there  were  one)  of  a  totally  different 
phenomenon,  viz.  of  a  change  in  qualities  substituted  successively 
for  each  other,  and  not  of  the  same  quantity  in  variable  degrees  ? 
When  the  praetor's  formulary-  actions  at  Rome  replaced  the 
"actio  sacramenti"  and  all  other  forms  of  action  —  when  torture 
in  the  1200  s  replaced  the  judicial  duel,  and  then,  a  century  ago, 
the  jury  replaced  torture  —  are  such  facts  capable  of  comparison 
with  the  variations  which  we  have  above  surveyed?  It  would 
be  useless  to  argue  that  the  substitution  was  gradual,  that  the 
beginning  of  the  later  institution  joined  on  directly  to  the  end  of 
the  earlier  one,  —  as  one  passes  gradually  from  one  color  to  the 
other  in  a  rainbow.  For  the  obstinate  fact  remains  that,  at  a 
certain  time  and  place,  a  new  germ  icas  implanted,  —  more  or 
less  fortuitous  and  unforeseen,  and  even  impossible  to  foresee 
though  explainable  after  we  see  it,  —  just  as  nothing  could  pos- 
sibly have  enabled  us  to  predict  that  the  yellow  in  the  rainbow 
would  come  next  to  the  blue  and  the  red  next  to  the  yellow,  if 
we  did  not  know  those  colors. 

All  this  is  meant  to  make  clear  that  there  are  two  senses  of  the 
term  Evolution,  profoundly  distinct,  when  applied  to  society,  and 
that  the  error  or  the  unconscious  and  insidious  method  of  the 
evolutionists  consists  in  confusing  them :  1st,  Evolution,  in  the 
most  precise  sense,  signifies  "imitative  propagation,  more  or  less 
extensive,  from  an  example  supplied  by  a  first  inventor";  2d, 
Evolution,  in  a  sense  much  more  confused,  signifies,  "a  meta- 
morphosis in  the  style  of  Proteus,  a  series  of  different  initiatives, 
more  or  less  imperfectly  connected."  And  this  ambiguity  leads 
to  another.  For  when  they  tell  us  of  an  evolution  which  is  uni- 
form for  all  societies,  the  "uniformity"  thus  meant  includes  two 
things,  {a)  uniformity  whose  cause  is  an  imitation  of  the  same  model, 
thus  the  transmission  of  the  same  tradition;  and  {h)  uniformity 
whose  cause  is  the  identity  (to  a  certain  degree)  of  the  human  or- 
ganism and  the  human  mind,  producing  a  coincidence  in  certain 
principal  inventions,  independently  of  each  other,  but  under  the 
same  needs,  and  producing  them  successively  in  an  order  often 
nearly  alike,  by  virtue  of  logical  laws. 

§  2.  Procedure  and  Courts  in  general.  In  many  primitive  sys- 
tems of  procedure,  it  may  be  conceded  —  even  in  that  of  Athens 
—  the  proceedings  begin,  as  did  the  "actio  sacramenti"  of  the 
early  Romans,  by  the  parties'  deposit  of  a  sum  of  money,  required 
before  any  other  formality,  to  insure  the  payment  of  the  expenses 


700  PKOCEDURE  [Part  IV. 

of  justice.^  Sir  Henry  Maine  has  pointed  out  -  the  striking 
analogies  between  the  forms  of  the  primitive  Roman  "pignoris 
capio"  and  of  the  distraining  of  cattle  so  important  in  early  Eng- 
lish law.  .  .  .  One  may  easily  concede  that  the  analogy  re- 
marked by  Maine  is  probably  attributable  to  that  common  fund 
of  common  traditions  and  institutions  which  we  know  to  have 
been  the  heritage  of  all  Indo-European  peoples.'^  In  other  words, 
its  cause  is  the  imitation  of  the  father  by  the  son.  Another 
analogy  noted  by  the  same  author  is  explainable  in  the  same  way, 
viz.,  the  practice  of  "sitting  dharna,"  used  by  the  Hindus,  and 
that  of  "fasting  on  a  person,"  once  practised  in  Ireland,  In 
both  practices,  the  creditor,  to  compel  payment  from  a  debtor, 
places  himself  before  the  latter's  doorway,  there  to  remain  fast- 
ing indefinitely,  until  the  debt  is  paid ;  ^  the  expected  payment 
seldom  was  delayed,  for  public  opinion  would  have  wreaked 
itself  upon  the  debtor  who  allowed  his  creditor  to  become 
exhausted  or  to  die  of  starvation  before  the  door.  I  will  only 
note  that  this  method  of  compulsion  illustrates  the  depth  of  the 
sentiment  of  compassion  among  primitive  peoples,  and  in  no 
way  gives  support  to  the  insensibility  commonly  attributed  to 
them.   ... 

1  It  is  unpleasant  to  have  to  note  that,  from  earliest  beginnings,  justice 
appears  everywhere  as  essentially  something  that  costs.  I  am  tempted 
to  add  that  many  of  the  numerous  fatal  technicalities  devised  in  codes  of 
civil  procedure  recall  nothing  more  strongly  than  the  Polj^nesian  islanders' 
taboo.  I  do  not  dare  to  speak  jocosely  on  so  lamentable  a  subject ;  but 
one  example  from  a  thousand  I  cannot  refrain  from  giving.  Some  j^ears 
ago,  a  farmer  in  my  neighborhood,  well-to-do  and  reputable,  D.  by  name, 
sued  one  of  his  neighbors,  and  after  a  summary  proceeding  not  permitting 
an  appeal,  obtained  a  judgment  for  fr.  700  against  his  opponent.  In 
entering  the  judgment,  the  error  was  made  of  failing  to  record  that  the 
witnesses  had  been  sworn.  Observe  that  they  had  indeed  been  duly 
sworn,  as  everybody  well  knew,  but  the  record  failed  to  mention  the  per- 
formance of  this  archaic  ceremony.  The  losing  party,  taking  advantage 
of  this  mandatory  rule,  appealed.  The  upper  coiu-t  set  aside  the  judg- 
ment and  remanded  the  case  to  another  eoirrt.  While  awaiting  this 
trial,  the  opponent  filed  a  claim  against  D.  for  the  costs  of  the  appeal, 
some  fr.  1800.  The  astonished  and  indignant  D.  was  levied  upon ;  his 
farm,  which  was  his  sole  subsistence,  was  sold  at  an  absm-dly  low  price, 
scarcely  enough  to  pay  the  claim  for  costs.  Here  was  a  man  ruined  by 
winning  a  lawsuit,  —  by  winning  it  twice,  indeed ;  for  after  the  sale  the 
second  trial  again  resulted  in  his  favor.  D.,  overwhelmed  by  his  mis- 
fortune, is  tlu"eatened  with  mental  derangement.     And  no  wonder! 

2  [See,  in  this  volume,  p.  586  seq.,  and  p.  591  seq.] 

3  And  even  of  many  others ;  for  the  item  of  race  is  here  very  secondary. 
The  Semites  show  surprising  resemblances  to  the  Aryans  in  primitive 
legal  ideas. 

*  Among  the  Hebrews,  and  thus  in  a  different  race,  M.  Dareste  finds 
a  trace  of  this  procedure;  the  creditor  cannot  enter  the  debtor's  house 
to  make  a  seizure;  "thou  shalt  remain  without,"  says  Deuteronomy, 
"and  he  shall  give  thee  what  he  has." 


Chap.  XXXI,  §  8.]  EVOLUTION   OF   PROCEDURE  701 

But,  seeking  fot  generalizations,  let  us  now  ask  whether  it  is 
indeed  proved  :  1st,  That  procedure  and  courts  have  had,  as  a 
like  point  of  departure,  one  and  the  same  embryonic  condition; 
2d,  Whether,  though  perhaps  starting  from  different  conditions, 
they  have  everj-^vhere  in  their  development  passed  through  a 
like  order  of  successive  phases ;  3d,  Whether,  though  by  different 
roads,  they  tend  to  converge  towards  the  same  ideal  perfection. 

1.  In  the  first  place,  where  do  we  see  any  evidence  of  this 
initial  resemblance,  which  some  have  so  readilj-  conceded  ?  What 
reason  have  we  to  believe  that  the  resemblance  is  anything  but 
that  illusive  simplification,  that  effacement  of  contours  and 
colors,  which  is  produced  by  distance  in  time  and  space,  and  forms 
the  mirage  of  philosophic  historians?  The  further  we  proceed 
into  the  desert  of  the  past,  the  further  recedes  this  picture  of 
primitive  life  as  one  and  uniform,  glittering  before  our  eyes  in 
the  deceptive  distance.  It  is  a  common  error  to  conceive  of  the 
single,  the  homogeneous,  the  undifferentiated,  as  located  at  the 
beginning  and  bottom  of  things.  Yet  wherever  we  take  the 
trouble  to  dig  down  for  this  supposed  homogeneous,  we  come 
upon  a  swarming  progeny  of  characteristic  differences.  We  have 
only  to  observe  the  wild  tribes  still  extant.  In  some  of  them,  e.g. 
the  Kabyles,  the  judicial  function  is  exercised  by  the  entire  village ; 
in  others,  it  centers  in  the  chief,  a  patriarch  or  a  despot ;  in  others, 
it  is  shared  between  the  chief  and  the  assembly;  and  perhaps 
we  should  discover  some  tribe  which  called  in  a  stranger  to  be 
the  impartial  judge  for  their  quarrels,  like  the  "podesta"  of  the 
medieval  Italian  cities.   .  .  . 

Let  us  beware  of  hasty  generalizations.  IMaine  himself  was  here 
too  hasty.  Because  the  old  Roman  "actiones  legis,"  like  other 
early  systems  observed  by  him  in  India,  consisted  in  symboUc 
combats  disputing  over  some  article,  he  drew  the  inference  that 
this  "juristic  drama"  must  have  been  the  universal  primitive 
type  in  procedure.  And  Letourneau  makes  the  same  inference ; 
"all  this  mimicry  was  evidently  meant  to  avoid  a  violent  struggle 
while  calling  it  to  mind;  and  the  forms  of  a  creditor's  levy  are 
drawn  from  the  primitive  foray  of  violence,  while  serving  to  re- 
place it."  This  sounds  very  plausible.  For  symbolism  in  pro- 
cedure is  common  enough  —  in  primitive  penalties,  for  example, 
where  the  rule  of  "an  eye  for  an  eye"  and  personal  revenge  mu- 
tually explain  each  other.  A  sort  of  natural  symmetry  of  opposites 
leads  often  to  one  thing  reflecting  the  image  of  another.  And  the 
symbol  may  be  drawn  from  precisely  that  other  thing  which  it 


702  PROCEDURE  [Part  IV. 

opposes  and  replaces.^  But  to  universalize  this  feature  (which 
of  course  would  be  confined  to  imaginative  peoples)  is  to  make  a 
cardinal  mistake,  —  the  mistake  of  the  philologians  who  seek  to 
explain  the  origin  of  all  languages  by  onomatopoeia,  that  is,  by 
vocal  mimicry.^  It  w^ould  be  as  unreasonable  to  generalize  the 
universal  beginnings  of  criminal  procedure  (which  must  have  come 
before  civil  procedure)  as  a  sort  of  lynch-law ;  for  this  summary 
proceeding  ife  found  among  many  peoples ;  ^  but  nobody  would 
go  so  far  as  to  infer  that  therefore  all  primitive  peoples  began  by 
hnching.  The  conclusion  is  that  the  greatest  diversity  must 
have  reigned  in  primitive  procedures,  as  in  primitive  languages. 
2.  In  the  second  place,  I  do  not  find  —  any  more  than  in  the 
first  item  —  any  great  similitude  in  the  succession  of  phases 
through  which  the  various  procedures  and  judicial  systems  passed 
in  their  development,  —  unless  it  be  such  similitude  as  is  attrib- 
utable to  imitation,  direct  or  indirect.  Direct  imitation  is 
found,  as  where  the  institutions  of  an  alien  people  are  copied.  In- 
direct imitation  is  where,  without  copying,  but  through  the  gen- 
eral diffusion  and  exchange  of  examples  —  tribes  becoming  cities, 
cities  becoming  kingdoms  or  empires  or  great  nations,  and  thus 
more  civilized,  i.e.  complex  —  this  gradual  enlargement  and 
gradual  complexity  has  forced  the  procedure  and  the  judicial 
system  to  adapt  itself  thereto.  The  successive  forms  of  this 
adaptation,  to  some  extent  vague,  present  a  certain  analogy.  For 
example,  wdien  the  city  became  larger,  of  course,  a  king's  justice 
replaced  that  of  the  family  tribunals  for  certain  kinds  of  offences 
or  claims.  So,  too,  this  gradual  enlargement  of  the  social  group 
explains  why  (in  almost  all  legal  systems)  the  original  rule,  forbid- 
ding the  suitor  to  plead  by  attorney  and  requiring  him  to  attend 
in  person,  ended  finally  in  not  only  permitting  the  use  of  an  attor- 
ney but  in  requiring  it.     So,  too,  in  the  very  small  democratic 

'  For  what  could  be  more  opposed  than  reconeihation  and  revenge  ?  And 
yet  the  ceremony  of  reconciliation  among  the  Bohemians,  in  the  1300  s,  as 
described  to  us  in  the  Moravian  custumals  {Dnreste,  p.  166),  is  a  symbolic 
vendetta.  And  what  could  be  more  opposed  to  war  than  a  sport?  And 
yet  the  games  of  cards  and  of  chess,  to  name  no  others,  are  symbolic 
combats. 

2  This  hypothesis,  much  too  simpUficative,  and  rejected  moreover  by 
most  scholars,  is  applicable  only  to  those  phrases  invented  by  exceptional 
persons  belonging  to  what  M.  Ribot  and  other  psychologists  term  the 
"auditive  type"  ("Revue  philosophique,"  Oct.  1891,  article  by  Ribot, 
on  "General  Ideas"). 

^  Notably  in  Israel,  where,  alongside  of  the  judgments  of  the  kings  a,nd 
the  Levites,  we  find  the  "judgments  of  zeal,"  i.e.  the  spontaneous  execution 
of  a  criminal  by  an  indignant  crowd.  Indignation  is  a  very  old  thing,  and 
therefoi'e  also  the  moral  sentiment. 


Chap.  XXXI,  §  8.]  EVOLUTION   OF   PROCEDURE  703 

States,  the  laws  had  to  be  voted  directly  by  the  assembled  people, 
while  in  the  large  States  they  could  be  voted  only  by  represent- 
atives. And,  furthermore,  as  invention  led  to  the  domestication 
first  of  animals,  then  of  plants,  diffusing  and  exchanging  them,  and 
the  tribe  passed  from  the  hunting  to  the  pastoral  stage,  and  then 
to  the  agricultural  stage,  which  permitted  fixity  of  location  and 
density  of  population,  it  is  plain  that  legal  procedure  must  have 
grown  rich  and  complex  in  detail,  and  the  judicial  function  must 
have  become  regularized  and  specialized. 

But  I  do  not  perceive  that  (apart  from  direct  borrowings)  two 
peoples  who  remained  entire  strangers  to  each  other  exhibited  any 
similitudes  that  could  not  be  explained  by  the  foregoing  considera- 
tions. .  .  .  All  that  can  be  generalized,  as  to  the  successive 
transformations  of  procedure,  is  that,  contrary  to  the  common 
opinion,  it  becomes  more  and  more  formal  as  it  advances  (at 
least  up  to  a  certain  age),  i.e.  more  and  more  precise,  regular,  and 
minute.  And  why?  For  the  same  reason  that  the  orthography 
of  language  develops  an  ever-increasing  meticulosity,  —  in  spite 
of  the  reformers  of  the  moment,  and  in  proportion  to  the  prog- 
ress of  literatures. 

3.  But  though  there  is  no  common  point  of  departure,  and  no 
common  path  imposed  on  the  judicial  methods  of  diverse  peoples, 
may  we  not  at  least  say  that  they  tend  to  the  same  point  of  arrival  ? 
Thus  far,  this  pole-star  of  hypothesis  has  not  revealed  itself  to 
my  eyes.  I  do  indeed  see,  in  proportion  as  the  field  of  civilization 
expands,  a  small  number  of  procedural  systems  replacing  numer- 
ous diversified  ones.  And  it  may  be  that  this  progressive  elim- 
ination will  lead  finally  to  the  reign  of  a  single  system,  i.e.  the 
procedural  system  (as  well  as  the  language)  peculiar  to  that  na- 
tion which  proves  most  invasive,  most  obstreperous,  most  full 
of  prestige.  For  it  is  beyond  doubt  that,  by  the  laws  of  imitation, 
and  just  because  we  start  with  a  diversity  of  original  things  each 
of  which  aspires  to  make  itself  universally  imitated,  some  day  a 
unity  will  come  about  by  the  triumph  of  one  of  them.  Thus  it 
was  that  the  Roman  empire  as  a  juridical  unity  was  formed  by 
the  superposition  of  the  law  of  the  city  of  Rome  upon  the  Etruscan 
law,  the  Celtic  law,  the  Hellenic  law,  and  the  others.  But  that 
sort  of  uniformity  is  very  different  from  the  uniformity  produced 
by  inherent  finality  or  purpose  in  nature,  the  necessary  effect  of 
the  concurrence  of  contacts,  whether  imitative,  spontaneous, 
or  forced,  —  very  different  from  the  uniformity  caused  by  that 
necessity  that  every  system  of  law,  developing  in  isolation,  shall 


704  PROCEDURE  [Part  IV. 

issue  into  a  condition  closely  identical  with  that  upon  which  all 
the  others  are  converging  (as  if  by  some  higher  attractive  force), 
and  regardless  of  the  various  starting-points  and  of  the  diverse 
travels  of  each.   .  .  . 

What  need  of  further  descending  into  concrete  details?  Does 
an  ideal  procedure  imply  necessarily  the  existence  of  barristers, 
attorney's,  bailiffs?  Clerks,  yes,  I  concede  that,  since  the  inven- 
tion of  writing.^  But  in  ancient  Egypt,  where  trials  were  in  writ- 
ing, and  though  their  juridical  evolution  was  the  longest,  and 
reached  the  farthest  point  in  its  own  type,  of  any  in  the  whole 
world,  there  were  no  arguments  and  no  lawyers.  In  China  and  in 
Japan  there  w^ere  no  lawyers.  In  La  Plata  (and  we  all  know  that 
the  peoples  of  South  America  are  proud  of  their  progressive- 
ness)  there  are  neither  attorneys  nor  bailiffs. 

I  do  not  say  that  that  is  the  last  word  in  perfection.  But  I 
believe  that  I  am  right  in  saying,  No  one  can  describe  the  Pro- 
cedure of  the  Future. 

It  will  be  —  what  They  will  make  it ! 

1  Even  among  the  Aztees,  who  used  a  sort  of  cursive  painting  for  lack 
of  a  script,  we  find  a  clerk  represented  as  "  pictographing  "  the  decisions. 


214  3  ^ 


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